Mayer on Rahm

/in , /by

I first teased out Rahm Emanuel’s role in reversing Obama’s early efforts to reclaim our country from torture last July. In August, my comments at Netroots Nation focused on Rahm’s role in preventing accountability for torture. I kept tracking Rahm’s campaign to prevent accountability here, here, and here.

Today, Jane Mayer has an extended profile of Eric Holder that fleshes out what we’ve all known: Rahm’s the guy who killed accountability for torture.

Emanuel viewed many of the legal problems that Craig and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. Holder and Emanuel had been collegial since their Clinton Administration days. Holder’s wife, Sharon Malone, an obstetrician, had delivered one of Emanuel’s children. But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

That’s what human rights are to Rahm Emanuel–mere distractions, speed bumps on his road to nine wins or–in the case of health care reform–epic failure.

Where Mayer breaks real news in her description of Rahm’s role in preventing accountability is her description of why Rahm opposed so many of Holder’s decisions: because they offended Lindsey Graham.

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. Emanuel was particularly concerned with placating Lindsey Graham, the Republican senator from South Carolina, who was a leading proponent of military commissions, and who had helped Obama on other issues, such as the confirmation of Supreme Court Justice Sonia Sotomayor. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

At Emanuel’s urging, Holder spoke with Graham several times. But they could not reach an agreement. Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. “The President’s advisers have served him poorly here,” he said. “I like Eric, but at the end of the day Eric made the decision.” Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11. [my emphasis]

All along Rahm’s campaign against Greg Craig and Holder he left complaint after complaint that they had ruined the relationship with Congress. This, I suppose, is what Rahm means: doing anything–even those actions dictated by international law–that offend poor Lindsey’s sensibilities is a mistake, tantamount to ruining the President’s relationship with Congress. And I guess Rahm is okay with that–ceding the President’s authority on national security and legal issues to Lindsey Graham.

And look what you get out of that: Lindsey in a snit, pouting that the Attorney General of the United States determined to try criminals in a civilian court. And in response, refusing to close Gitmo.

In other words, we can’t close Gitmo because Obama’s “crack” Chief of Staff has willingly ceded the authority of the Attorney General of the United States to one Senator from the opposing party, and that single Senator is pouting because the Attorney General might choose law over Kangaroo Courts.

Read more →

What Glenn Greenwald Said On American Terrorism Cowardice

/in , , , , , , , , , , , , /by

Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.

Matthew Alexander Points to the Abuse Still Permitted by the AFM Appendix

/in , /by

Jeff Kaye has been telling us for years that the Army Field Manual which the Obama Administration adopted as its standard for all interrogation still allows a great deal of abuse. (See his three part series from earlier this month, for example: one, two, three.)

Today, former military interrogator Matthew Alexander joins in Jeff’s calls for more attention to what is allowed by the Army Field Manual on the NYT op-ed page.

The adoption last year of the Army Field Manual as the standard for interrogations across the government, including the C.I.A., was a considerable improvement. But we missed a unique opportunity for progress last August when the president’s task force on interrogations recommended no changes to the manual, which was hastily revised in 2006 in the aftermath of the Abu Ghraib torture scandal.

For example, an appendix to the manual allows the military to keep a detainee in “separation” — solitary confinement — indefinitely. It requires only that a general approve any extension after 30 days. Rest assured, there will be numerous waivers to even that minuscule requirement.

[snip]

The Army Field Manual also does not explicitly prohibit stress positions, putting detainees into close confinement or environmental manipulation (other than hypothermia and “heat injury”). These omissions open a window of opportunity for abuse.

The manual also allows limiting detainees to just four hours of sleep in 24 hours. Let’s face it: extended captivity with only four hours of sleep a night (consider detainees at Guantánamo Bay who have been held for seven years) does not meet the minimum standard of humane treatment, either in terms of American law or simple human decency.

And if this weren’t enough, some interrogators feel the manual’s language gives them a loophole that allows them to give a detainee four hours of sleep and then conduct a 20-hour interrogation, after which they can “reset” the clock and begin another 20-hour interrogation followed by four hours of sleep. This is inconsistent with the spirit of the reforms, which was to prevent “monstering” — extended interrogation sessions lasting more than 20 hours. American interrogators are more than capable of doing their jobs without the loopholes.

The Field Manual, to its credit, calls for “all captured and detained personnel, regardless of status” to be “treated humanely.” But when it comes to the specifics the manual contradicts itself, allowing actions that no right-thinking person could consider humane.

Alexander calls for a revision to the Army Field Manual to–as he puts it–stop giving al Qaeda a recruiting tool.

Thanks to Jeff for his persistence on this issue and Matthew Alexander for now championing the issue. As Alexander points out, it has now been a year since Obama promised to end the practice of torture. It’s time to look at what we do permit and consider whether Obama has really met his goal.

DC Circuit Limits Detainee's Procedural Rights

/in /by

Two of the most conservative members of the DC Circuit, Janice Rogers Brown and Brett Kavanaugh, have ruled that detainees captured on the battlefield do not have access to all the procedural habeas rights a domestic criminal would.

The case involves Ghaleb Nassar al-Bihani, who argued, firstly, that he was not legally detained under international law. As a cook (a contractor, he said) for a Taliban unit, he was not at war with the US, and in any case the war against the Taliban is over.

Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. He first argues that relying on “support,” or even “substantial support” of Al Qaeda or the Taliban as an independent basis for detention violates international law.

[snip]

Al-Bihani interprets international law to mean anyone not belonging to an official state military is a civilian, and civilians, he says, must commit a direct hostile act, such as firing a weapon in combat, before they can be lawfully detained. Because Al-Bihani did not commit such an act, he reasons his detention is unlawful.

Al-Bihani argues further that he was not accorded all his procedural rights.

Drawing upon Boumediene’s holding, Al-Bihani challenges numerous aspects of the habeas procedure devised by the district court. He claims the district court erred by: (1) adopting a preponderance of the evidence standard of proof; (2) shifting the burden to him to prove the unlawfulness of his detention; (3) neglecting to hold a separate evidentiary hearing; (4) admitting hearsay evidence; (5) presuming the accuracy of the government’s evidence; (6) requiring him to explain why his discovery request would not unduly burden the government; and (7) denying all but one of his discovery requests. In support of these claims, Al-Bihani cites statutes prescribing habeas procedure for review of federal and state court convictions and analogizes to a number of cases concerning review of detentions related to criminal prosecutions. Brief for Petitioner-Appellant at 48–49. By referencing these sources, Al-Bihani traces the district court’s supposed errors to its failure to accord him procedural parity with safeguards found in review of criminal proceedings.

Rogers and Kavanaugh start by dismissing the notion that international law should limit the government.

Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 2741–43, or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF.

Under domestic law, they argue, al-Bihani was legally detained (curiously they argue this would be true for contractors, too).

Under those sources, Al-Bihani is lawfully detained whether the definition of a detainable person is, as the district court articulated it, “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners,” or the modified definition offered by the government that requires that an individual “substantially support” enemy forces.

Read more →

Crazy Pete Hoekstra Throws Hissy Fit, Chases Jobs from Michigan

/33 Comments/in /by

Well, this is a mighty auspicious accomplishment from Congressman and Gubernatorial-wannabe Crazy Pete Hoekstra. By throwing a hissy fit opposing moving Gitmo detainees to Standish, MI, he has officially chased possible jobs guarding Gitmo detainees to Illinois.

Check out how much the letter from Hillary and Bob Gates to Governor Quinn informing him formally the government is going to buy the prison at  emphasizes how cooperative Illinois has been.

On November 12,2009, you wrote to Defense Secretary Robert Gates and Attorney General Eric Holder proposing that the Federal Government work with the State of Illinois to acquire the Thomson Correctional Center to house Federal inmates and a limited number of detainees from Guantanamo Bay, Cuba. We appreciate the leadership and assistance you and Senator Dick Durbin have provided during our evaluation of this proposal. We also would like to thank Thomson Village President Jerry “Duke” Hebeler and the people of Thomson and the surrounding region for their support and hospitality.

We write to inform you that the President has directed, with our unanimous support, that the Federal Government proceed with the acquisition of the facility in Thomson. Not only will this help address the urgent overcrowding problem at our nation’s Federal prisons, but it will also help achieve our goal of closing the detention center at Guantanamo in a timely, secure, and lawful manner.

[snip]

Federal officials also have consulted with local, county, and state law enforcement authorities to begin the process of identifying additional resources they may require to handle the increased population of Federal inmates and detainees. We are pleased that Illinois law enforcement authorities endorsed this plan in a letter to the Secretary of Defense and the Attorney General dated December 2,2009. We also note that more than 30 villages, towns, cities, counties, chambers of commerce, and other community and business organizations have sent letters, approved resolutions, or otherwise expressed their support for this plan. We are greatly encouraged by this support, and we commit to working with local authorities closely as this process moves forward. [my emphasis]

You see, Crazy Pete? Not only did you ruin the opportunity to save jobs in Standish, MI, but you’ve made Michiganders look like cads by comparison.

What the Government Claims Didn’t Get Videotaped

/22 Comments/in /by

Earlier, I reported that Judge Gladys Kessler had held the government in contempt for failing to follow her order that they videotape the habeas testimony of Mohammed al-Adahi. As part of her contempt order, she ordered the government to make the transcripts more readily available. Eventually those documents should be here. But in the meantime, I’ve liberated them from PACER (part one, part two).

The Visual Aspects Not Videotaped

The transcripts are interesting for two reasons. First, they show that the defense counsel and the Judge highlighted the filming that was supposed to be going on. Kessler emphasizes that when the hearing starts.

THE COURT: Good afternoon, ladies and gentlemen. This is the case of Mohammed Al-Adahi versus Barack Obama, CA 05-280. All counsel are present.
We are going to have videotaped testimony this afternoon I do believe from the petitioner, Mr. Al-Adahi. He will be testifying from Guantanamo.

Then, al-Adahi’s defense counsel in DC warned that those in Gitmo might be sweating on account of the lack of air conditioning.

MR. CHANDLER: A couple of minor items, Your Honor.

First, in the room in Guantanamo there is no air conditioning. Ms. Wilhelm said that may speed up her questioning. But if you see people perspiring profusely, it is because they are in the Caribbean with no air conditioning.

Then there’s an exchange between Chandler and Kessler in which the Chandler warns Kessler that al-Adahi is chained to the floor, which appears to frazzle Kessler.

MR. CHANDLER: There was a third thing I meant to call to the court’s attention, and that is that Mr. AI-Adahi is chained to the floor in Guantanamo.

THE COURT: I see. All right. Mr. AI-Adahi is now going to testify, and he does need to be sworn in. I know that he is using his religious book, the Koran, and of course that is acceptable to the court. Mr. AI-Adahi, would you please –oh, he cannot stand. I am sorry. Excuse me.

MR. CHANDLER: He can stand, he just can’t move around.

MS. WILHELM: Yes, Your Honor he can stand.

THE COURT: Oh, he can. All right. Would you please stand up.

In other words, Kessler and the defense counsel were all taking heightened note of the visual aspects of the scene, and al-Adahi’s own lawyer was arguably playing aspects of that image–the perspiration, the manacles–up for the videotape. Read more →

Obama Administration Held in Contempt for Hiding Gitmo Testimony

/24 Comments/in /by

Yesterday, I pointed to this language from the Government’s amicus brief in the Mohawk case.

The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon.

The government would never withhold information after a Court ordered it to hand over the information. Oh no, it would never do that!!!

Only, it would do that.

Just today, in fact, Judge Gladys Kessler just held the government in contempt for totally ignoring one of her orders: to video tape the habeas testimony of Gitmo detainee Mohammed Al-Adahi.

This Court heard Petitioner’s case at a four-day Merits Hearing from June 22-26, 2009. Id. at *2. Because classified information needed to be presented at the Hearing, proceedings had to be closed to the public. To afford the public and the press an opportunity to observe the greatest possible portion of Petitioner’s testimony, the Court instructed “the Government, through the appropriate agency, [to] videotape [Petitioner’s] testimony and maintain copies of the complete testimony as given, as well as a redacted version of that testimony.” Order at 1 (June 19, 2009). Petitioner testified via video-conference on June 23, 2009.

On July 23, 2009, the Government filed notice with the Court that the Petitioner’s testimony had not been videotaped.

[snip]

By requiring the Government to videotape Petitioner’s direct testimony and crossexamination, and then make it public after classification review, the Court sought to ensure that the public would have an opportunity to observe as much of the testimony as possible. Thus, there are two other justifications for imposing sanctions against the Government: to minimize the damages to the public’s lost opportunity to observe an actual Guantanamo Bay trial (or “Merits Hearing,” as it is referred to), and to deter further noncompliance with court orders.

[snip]

ORDERED, that the United States Department of Defense is hereby adjudged and decreed to be in civil contempt of Court for failing to comply with this Court’s Order of June 19, 2009, directing Respondents to videotape Petitioner’s testimony at the Merits Hearing in this case, and then to redact and maintain a copy of that recording; and it is further

ORDERED, that the Clerk of Court shall post a transcript of Petitioner’s testimony on the United States District Court Public Information Page for Guantanamo Bay Cases; and it is further

ORDERED, that Respondents shall submit, within 30 days of the date of this Order, a detailed explanation of all steps taken to ensure that such errors not occur in the future;

Mind you, this is effectively just a slap on the wrist. This is just civil, not criminal, contempt. And the government does not have to make a new videotape of al-Adahi’s testimony. And Kessler did not order the government to release al-Adahi, even though she earlier ruled in his favor on the habeas petition (the government is appealing).

So, once again, the government has played games with a detainee videotape (this time, by not making it) and gotten away with it. While Kessler ruled that al-Adahi’s lawyers had not proven the government had done this intentionally, there’s a very well established pattern here of the government repeatedly ensuring that no videotape evidence from detainees exists–at least publicly.

Conyers v. Obama: The “Demeaning Team”

/84 Comments/in , , , /by

I wasn’t going to post on this–I was going to let John Conyers and Barack Obama to have their public spat in peace.

According to [John Conyers], the president picked up the phone several weeks ago to  find out why  Conyers was “demeaning” him.
Obama’s decision to challenge Conyers highlights a sensitivity to criticism the president has taken on the left.

Conyers’s critical remarks, many of which have been reported on the liberal-leaning Huffington Post, appear to have irritated the president, known for his calm demeanor.

Conyers, the second-longest-serving member of the House, said, “[Obama] called me and told me that he heard that I was demeaning him and I had to explain to him that it wasn’t anything personal, it was an honest difference on the issues. And he said, ‘Well, let’s talk about it.’”

[snip]

“I’ve been saying I don’t agree with him on Afghanistan, I think he screwed up on healthcare reform, on Guantánamo and kicking Greg off,” Conyers said, referring to the departure of former White House counsel Greg Craig.

[snip]

The liberal Conyers has been an outspoken proponent of a single-payer healthcare system and a critic of U.S. involvement in the wars in Afghanistan and Iraq.

He has also been at odds with White House policy on extending expiring  provisions of the Patriot Act, crafting legislation that is to the left of the Senate’s version.

But I thought it worthwhile to elaborate on what the Hill said about Conyers’ support for Obama–which reminds that Conyers was the first CBC member to endorse Obama.

Conyers played a pretty important role in the way Michigan’s Clusterfuck of a primary worked out. Read more →

Ghailani’s Speedy Trial Challenge

/57 Comments/in /by

Ahmed Ghailani’s lawyers have moved to have his indictment dismissed because he was denied a speedy trial. As a reminder, Ghailani is being tried for his involvement in the African embassy bombings, under an indictment first filed in 1998. His lawyers are arguing that the government held and interrogated Ghailani for 57 months (with two years in a Black Site) before they moved to try him on that indictment that was pending during that entire period of detention.

At the end of the day, certain things appear to be irrefutable: (1) the delay was caused by deliberate Government action which would knowingly deprive Mr. Ghailani of his right to a Speedy Trial; (2) the reason to cause this delay was the Government’s desire to interrogate Mr. Ghailani extensively about matters that involved the same entity and co-conspirators that were part of the charged indictment; and (3) by being able to interrogate Mr. Ghailani for as long as they did and in the manner and under the conditions that they did, the Government obtained the information it sought, without having to enter into a voluntary and binding plea agreement that could have allowed the Government to obtain the same information that the Government sought but after he was arraigned and provided counsel in the Southern District of New York.

In short, and in the interests of national security, the Government got what it desired, when it desired, but at the expense of denying Mr. Ghailani his Constitutional right to a Speedy Trial on the pending Indictment.

Now, the motion is going to be unique among potential Article III defendants, since no other detainees are known to have pending indictments in an Article III court. But it will be an early read on whether and how abuse will be introduced into these cases. There are extensive pages describing Ghailani’s treatment–all of which have been redacted in the public filing. The motion notes in footnote 5 that,

We also note that due to the limitations of the Classified Information Protective Order, dated, July 21, 2009, issued in this case, the defense has been unable to directly discuss the information contained in these summaries with Mr. Ghailani and are required to rely instead upon the Government’s summaries of what occurred.

This seems to suggest that the lawyers themselves are only getting summaries of the treatment Ghailani underwent, but they are then limited to substitutions for those summaries themselves (though I will try to clarify this). To provide a public description of what might have happened to Ghailani, then, his lawyers had a civilian defense counsel from the Office of Military Commissions submit a declaration about the known details of the interrogation program to lay out the kinds of treatment Ghailani might be subject to. (Note, she focuses on the August and September 2004 approvals signed by Dan Levin, at least one of which almost certainly pertains to Ghailani personally).

So Ghailani has–through this Speedy Trial challenge–introduced evidence about his torture. But it’s behind three different screens of redaction to prevent Americans from knowing how he was treated.

War on Fox Commissions

/10 Comments/in /by

I’ve been complaining of late that the LAT’s stupid Republican blogger, Andrew Malcom, is so bad that he must get tons of links making the LAT think he’s great for traffic.

So I wanted to be sure to link to Fox legal analyst Andrew Napolitano’s good discussion of the problems with military commissions–so the LAT gets rewarded for something besides Malcom’s idiocy.

Start with this description of the problem with everyone’s unshakeable faith in the value and legitimacy of military commissions.

The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

[snip]

Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are Glenn Beck, Bill O’Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?

Maybe that will get the fearmongerers to start demanding War on _____ Commissions?

There’s more–and actual conservative legal argument against the military commissions. But since I’m trying to reward the LAT for something other than that loathsome Malcom, click through to read that.