Feingold’s Opposition to Indefinite Detention

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Man, I love Russ Feingold. Here’s the letter he sent Obama to lay out his opposition to the notion of indefinite detention. (h/t dday)

He perfectly explains why indefinite would be a dangerous precedent.

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional Read more →

Pre-Coffee Deep Thought

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If Emmett Sullivan, the judge that is considering vacating Toobz Stevens’ conviction because the government withheld critical information also demands the government free Aymen Saeed Batarfi, a Gitmo detainee from whom the government withheld exonerating information…

"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.

"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?"

[snip]

"The sanction is going to be high," he said. "I’ll tell you quite frankly if I have to start incarcerating people to get my point across I’m going to start at the top."

…Does that mean Sarah Palin will call for a special election to let Batarfi run for elected office? Or, at the very least, will Palin allow Batarfi to settle in Alaska, since Palin is so convinced that prosecutorial misconduct equates to innocence on the part of the accused?  

The Latest Prop from Gitmo

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I’m generally sympathetic with the complaints defense attorneys are making about the release of the latest diatribe from Khalid Sheikh Mohammed and friends. Much of the attention has focused on the question, "Why is the military judge in the case issuing orders in this case when Obama has halted all commissions?" perhaps not least because it recalls the actions of James Pohl, who refused to stay Rahim al-Nashiri’s trial after Obama ordered all proceedings to halt.

But the complaints I’m most interested in have to do with the genesis of the document itself. What proof is there that all five detainees have signed this document, Adam al-Hawsawi’s attorney asked, when all we’ve got is a typed English document.

"There is no evidence that Mr. al Hawsawi knew about, read or signed this document ," Maj. Jon Jackson said in an email. "It is a typed message in English with no signature.  I object to this highly irregular document release." Maj. Jackson said he was unaware of the statement until the military judge ordered copies sent to attorneys Monday.

And how is it that this document has been published so quickly, other defense attorneys ask, when their own filings still haven’t been released?

Defense attorneys and civil liberties groups said that the speed with which Judge Stephen R. Henley, an Army colonel, released the statement after reviewing it March 5 was troubling. They pointed to an e-mail from the clerk of court for the military commissions to counsel on the issue, which said, "I have been asked by our . . . folks to release the documents ASAP."

Defense attorneys said they are still trying to secure the release of pleadings they filed eight months ago.

The authorities at Gitmo would have you believe that the five 9/11 detainees charged with 9/11 wrote this on March 1, got it translated into English and typed up and hand-classified Top Secret/SCI, then was given to the judge on March 5. And the judge reviewed it, reviewed its classification and deemed it unclassified, and then released it all by March 10. [Update: As drational points out, the first page of the diatribe itself has the date 2/24/09 in what appears to be the same hand as the TS/SCI classification–so this timeline goes back into at least February some time. He points out that the date probably refers to 12/1/08.]

I guess the Gitmo apologists can Read more →

The Secret State Continues to Crumble

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In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.

As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case. 

Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.

What Explains Commander Lippold’s Newfound Impatience on the Cole Prosecutions?

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Eight and a half years ago, Commander Kirk Lippold’s ship, the USS Cole, was attacked by Al Qaeda. As Richard Clarke explained it in Against All Enemies, the Cole should never have been in Yemen.

For over three years the CSG had been concerned with security at the ports in the region that were being used by the U.S. Navy. Steve Simon had written a scathing report on security he discovered at the Navy pier near Dubai in the United Arab Emirates. Sandy Berger had sent the report to the Secretary of Defense. I had personally crawled around and climbed up into sniper positions at the U.S. Navy facility in Bahrain because of repeated reports that al Qaeda planned to attack there. The Defense Department had fixed the problems in Bahrain and the UAW, but bases weren’t the only points of vulnerability. When the USS Cole was attacked, we were shocked to learn that the Navy was even making port calls in Yemen.

Mike Sheehan, then the State Department representative on the CSG, had summed up our feelings: "Yemen is a viper’s nest of terrorists. What the fuck was the Cole doing there in the first place?"

By late November, the Yemenis provided information to the US that preliminarily tied the attack to Al Qaeda; by late December, the case became stronger. Yet Clinton held back from a response because, the 9/11 Commission reported, CIA and FBI never conclusively tied the attack to Al Qaeda and besides it didn’t seem like Clinton wanted to know anyway.

Clarke recalled that while the Pentagon and the State Department had reservations about retaliation, the issue never came to a head because the FBI and the CIA never reached a firm conclusion. He though they were "holding back." He said he did not know why, but his impression was that Tenet and Reno possibly thought the White House "didn’t really want to know" since the principals’ discussions by November suggested that there was not much WhiteHouse interest in conducting further military operations against Afghanistan in the administration’s last weeks.

The Clinton Administration refused to do what Clarke and Sheehan pushed to do: to retaliate militarily. Read more →

What Jane Mayer Tells Us about Warrantless Wiretapping

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Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. Read more →

Crappy Record-Keeping: A Feature, Not a Bug

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Catalog of records the Bush Administration kept in such disorganized fashion that no one could reconstruct WTF BushCo had been doing on that subject:

(What am I missing?)

You see, historically, authoritarians usually happen to be superb record-keepers. That has been their undoing, once historians got to them. One thing the Bush fuckers got right (from their perspective, mind you) was to avoid leaving usable records.

Obama Gitmo Draft Executive Order Working Thread

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h/t Amnesty International

As I indicated in comments, I have a copy of the supposed final draft of Obama’s Executive order on Guantanamo. Perhaps I will append the main post later, but i want to get it up now. Especially since William Ockham reports that the ACLU has beat me to the punch. That is what I get for actually driving home and opening a bottle of wine for my wife I guess. Go figure.

Here it is. See you in comments to dissect it. Hey, you know, this change stuff is a lot of fun eh?

Obama Drafts Order To Close Gitmo; Suspends Habeas Cases In DC Circuit

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First off, President Obama has already drafted the order to close Gitmo, as he had promised. The AOL News is reporting:

The Obama administration is circulating a draft executive order that calls for closing the detention center at Guantanamo Bay within a year.

The draft order also would declare a halt to all trials currently under way at the facility, where roughly 800 detainees in the war on terror are held.
…
Word of the draft order comes on the same day that a judge granted Obama’s request to suspend the war crimes trial of a young Canadian in what may be the beginning of the end for the Bush administration’s system of trying alleged terrorists.
The judge, Army Col. Patrick Parrish, issued a written order for the 120-day continuance, without even holding a hearing on the question. Another judge was expected to rule later Wednesday on a similar motion to suspend the trial of five men charged in the Sept. 11 attacks.

Secondly, as I explained in the last post, President Obama has moved to suspend tribunal proceedings at Gitmo, and the military panels have started entering the orders. As further evidence of the determination to immediately address, and bring a new sense of enlightened justice to, the detainees in Guantanamo, the Administration has imposed analogous continuance motions in pending Habeas cases in United States District Court for the District of Columbia.

Specifically via a motion in Bostan v. Bush et. al, (DC Dist. 05-CV-00883), and a similar motion filed in Mohammon v. Bush et. al (DC Dist. 05-CV-02386), the Administration has moved to continue two hearings scheduled for this afternoon in respective Habeas Corpus cases.

The gist of the motions in both cases can be gleaned from the operative language in the Bostan case motion:

1. The Court previously scheduled a hearing on petitioners’ motions for expedited
judgment on the record for Wednesday, January 21, 2009, at 2:00 p.m. See, e.g., Bostan v.
Obama, No. 05-cv-0883, Order (Jan. 12, 2009, dkt. no. 109). The argument will involve issues
such as the appropriate nature and scope of the Executive’s detention authority during wartime.

2. Earlier today, Barack Obama assumed the office of the President of the United
States.

3. The Government is now assessing how it will proceed in the above-captioned
Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and
determination. Accordingly, the Government Read more →

President Obama Officially Halts GITMO Show Trials

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h/t Amnesty International

President Obama has ordered an abrupt halt in the Gitmo Show Trials. From Peter Finn at the Washington Post:

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for "a continuance of the proceedings" until May 20 so that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

In the legal field, this is known as an act taken "in the interests of justice". An incredibly welcome move by an administration literally only hours into its initial term. You have to hand it to President Obama, Guantanamo is a sensitive topic, especially with the neocon screechers, yet he proved the courage of his convictions and acted immediately upon being sworn in.

It appears that the action was foreshadowed at Camp Delta, as Carol Rosenberg of McClatchy already had reported, even before Obama was sworn in, that the trial of Omar Khadr had been put on hold:

A military judge on Tuesday postponed next week’s trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.
…
Until Tuesday, the Khadr case was shaping up to be an early test of Obama’s pledge to close the prison camps.
…
But Parrish’s indefinite delay — he set no new trial date — also derailed Pentagon plans to airlift a jury panel of U.S. military officers to this remote base this weekend.

The stay of all proceedings at Guantanamo for at least 120 days is, as stated, wonderful news; however, the better question is what it portends for the future disposition of the legal cases of the detainees including Khalid Sheik Mohammed and his co-defendants accused of organizing the 9/11 attacks.

Notably, the defense teams do not appear quite as thrilled as one might would expect by the move, citing fears that the government is simply trying to clean up the tribunal process minimally in order to continue on. Lt. Cmdr. William Kuebler, who represents Read more →