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You Have a Right to Speedy Trial … Unless They Need to Torture You First

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As we’ve discussed some in comments, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s challenge to his trial for the African embassy bombings on speedy trial grounds. Kaplan rejected Ghailani’s argument that, since the government had held him for five years before charging him, he had been denied the right to a speedy trial. Mostly, Kaplan ruled that, since the government got no advantage from waiting, the delay did not infringe on Ghailani’s rights.

This has been read to suggest that civilian judges would reject a similar challenge on the part of Khalid Sheikh Mohammed, meaning one possible barrier to a civilian trial for him, too, has been eliminated. That’s probably true. But it bears note that Kaplan did find government excuses for some of the delays in charging Ghailani unpersuasive.

In sum, the only reason for the delay of this prosecution during the period September 2006 through late February or early March 2007 was the fact that the executive branch decided to hold Ghailani at Guantanamo and not to proceed with the prosecution. The government’s justification for the roughtly one-year delay from February or March 2007 until March 28, 2008 is weak. The time during which the military commission proceedings were pending, March 28, 2008 until January 2009, also weighs against the government because the government and not the defendant was responsible for it. The same is true with respect to the interval from the suspension of the military commission prosecution in January 2009 until Ghailani eventually was produced in this Court.

Now, I think the argument that Kaplan used here will still largely hold sway. But some future judge may well look more skeptically on the current delay in charging KSM. After all, this delay — to let the political winds blow over until such time as KSM can be charged in a civilian court (if that’s what is happening) — is something the government is doing to gain advantages over KSM. Eric Holder has explained unambiguously that one reason he thinks we stand a better chance of trying KSM in civilian courts is to be able to impose the death penalty, and there’s actually a greater risk that KSM’s torture might lead a military commission to compensate for the treatment. The Attorney General, that is, has repeatedly said he wants to try KSM in civilian court because it holds certain advantages over military commissions for the government; and the only possible way to move forward in civlian courts is to wait until either Rahm and Lindsey say it’s okay or until the election passes. I don’t think it’ll happen, but there is an argument to be made that the current delay in charging KSM is designed to gain an advantage and therefore could be judged to violate his right to a speedy trial.

But that’s not what I find most interesting about this ruling. It’s the way Kaplan decides that the two years Ghailani was held — and, Ghailani says, abused — at a black site didn’t violate his right to a speedy trial. Here’s the argument:

The CIA interrogated Ghailani for the first two years in the reasonable belief that Ghailani had important intelligence information. While some of the methods it widely is thought to have used have been questioned and, to whatever extent they actually were used, might give rise to civil claims or even criminal charges, 139 no one denies that the agency’s purpose was to protect the United States from attack.

“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” While the Speedy Trial Clause conceivably might have been violated if a prosecution were delayed for the purpose of extended use of appalling or unlawful methods of interrogation even for important national security reasons, that is not the case. There was no prolonged delay here for any such purpose. The two year delay attributable to the CIA interrogation served a valid purpose. The balance of considerations with respect to that period, especially in the light of the lack of substantial prejudice to Ghailani’s Speedy Trial Clause-protected interests, tips heavily in favor of the government.

139 But see Detainee Treatment Act of 2005, 42 USC 2000dd-1(a) (establishing qualified defense for government personnel charged with offenses or liability in connection with officially authorized operational practices “that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States”).

This is a lovely example of the muddlespeak one has to resort to to make an argument that is not entirely persuasive. “While some of the methods it widely is thought to have used have been questioned”? That construction is all the more ridiculous given that a few of the documents Kaplan cites on torture–like the Bradbury CAT memo, the CIA’s Combined Techniques document, and a version of the OMS guidelines are publicly available. And how does Kaplan decide that Ghailani’s trial hasn’t been delayed just for torture? Because John McCain subsequently declared it retroactively legal?

Read more →

Waterboarding Is Only Torture If John McCain Says So

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Time for another blogger ethics panel. Or maybe just a bloggers’ style guide, one that states unequivocally that waterboarding is torture. Because–as Glenn reported earlier–the dead tree press only calls waterboarding torture when others do it. And they stopped referring to it as torture as soon as it became clear it had become US policy.

The results of this study demonstrate that there was a sudden, significant, shift in major print media’s treatment of waterboarding at the beginning of the 21st century. The media’s modern coverage of waterboarding did not begin in earnest until 2004, when the first stories about abuses at Abu Ghraib were released. After this point, articles most often used words such as “harsh” or “coercive” to describe waterboarding or simply gave the practice no treatment, rather than labeling it torture as they had done for the previous seven decades.

One of the most telling details from the study is the description of how newspapers admitted that waterboarding is torture without their omniscient editorial voice describing it as such: they quoted other people.

All four papers frequently balanced their use of softer treatment by quoting others calling waterboarding torture. Except for a brief spate of articles in 1902‐1903 in the NY Times which quoted mostly military officials and senators, almost all of the articles that quote others calling it torture appeared in 2007 and 2008.

More telling still, newspapers barely began to do that until 2007, three years after they started talking about torture, and they most often relied on John McCain to state what–before it became clear the US engaged in such torture–their own pages had stated fairly consistently beforehand.

When quoting others who call waterboarding torture, there is a shift in who the LA Times and the NY Times quoted over time.

Before 2007, the NY Times had only scattered articles quoting others. However, beginning in 2007, there is a marked increase in articles quoting others, primarily human rights groups and lawmakers. Human rights representatives predominate during the first half of the year. However, beginning in October, politicians were cited more frequently labeling waterboarding torture. Senator John McCain is the most common source, but other lawmakers also begin to be cited. By 2008, the articles’ references are more general such as “by many,” or “many legal authorities.” Stronger phrases such as “most of the civilized world” also begin to appear.

The dead tree press, apparently, couldn’t find an expert they believed could adequately voice the long-standing consensus that waterboarding is torture–a consensus recorded in their own pages (at least those of LAT and NYT)–until after McCain started speaking out on the topic.

One more point. The study only examined the four papers with the greatest circulation: NYT, LAT (both of which had extensive archives the study measured for previous uses of torture), USA Today, and WSJ (which didn’t have the same range of archives). So it did not include the WaPo in its study–the paper notorious for torture apology from both the newsroom and Fred Hiatt’s editorial page. So the numbers could be even worse!

What a remarkable measure of the cowardice of our press. And what a remarkable measure of how it happened that torture became acceptable. It’s not just that the press failed in their job, but it’s clear that’s a big part of it.

NYT, Republican Opposition Rag

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Clark Hoyt has a really curious final column summarizing his three years as the NYT’s public editor. A lot of it is self-congratulation to the NYT for even having a public editor. But I’m most fascinated by Hoyt’s rebuttal of reader claims that NYT is a “liberal rag.”

For all of my three years, I heard versions of Kevin Keller’s accusation: The Times is a “liberal rag,” pursuing a partisan agenda in its news columns.

[snip]

But if The Times were really the Fox News of the left, how could you explain the investigative reporting that brought down Eliot Spitzer, New York’s Democratic governor;derailed the election campaign of his Democratic successor, David Paterson; got Charles Rangel, the Harlem Democrat who was chairman of the House Ways and Means Committee, in ethics trouble; and exposed the falsehoods that Attorney General Richard Blumenthal of Connecticut, another Democrat, was telling about his service record in the Vietnam era?

Hoyt names the Spitzer scandal, certain Paterson allegations, coverage of the Rangel scandal, and its recent Blumenthal attack as proof that the NYT is not a liberal rag.

With the exception of the Rangel coverage, these are all stories for which the source of the story is as much the issue as the story itself. Hoyt must hope we forget, for example, that Linda McMahon (Blumenthal’s opponent) boasted she fed the Blumenthal story to the NYT. Their denials that she had done so became even more unconvincing when the AP reported that the NYT hadn’t posted the full video, which undermined the NYT story.

I have no idea where the Rangel story came from (and in this case, I don’t care, because it’s clearly an important story about real abuse of power).

Then there’s Paterson. With this story, too, there’s a dispute about the NYT’s sources. Paterson says he was the NYT’s original source (they deny that too, and it’s true that this one is more likely to have been a Cuomo hit job). In any case, the NYT story fell far short of the bombshell that was promised for weeks leading up to it. Another political hit job that maybe wasn’t the story it was made out to be.

Which brings us to Eliot Spitzer. There are a number of possible sources the NYT might have relied on, starting with right wing ratfucker Roger Stone, who has bragged about being involved in that take-down. But they all, almost by definition, come down to leaks from inside a politicized DOJ. And those leaks focused not on any of the other elite Johns involved, not on the prostitution ring itself (which was, after all, exceptional only for its price tag), but on Spitzer. While I agree that Spitzer’s hypocrisy invited such a take-down, there wasn’t much legal news there, no matter how hard the press tried to invent it to justify the coverage.

But the list doesn’t end there. Elsewhere in Hoyt’s goodbye, he mentions his biggest regret–the Vicki Iseman story.

But throughout my tenure, Keller was gracious and supportive. When we had what was certainly our disagreement of greatest consequence — over the Times article suggesting that John McCain had had an extramarital affair with a young female lobbyist — Keller showed great equanimity. I said The Times had been off base. Though the story gave ammunition to critics who said the paper was biased, and it was no help to have the public editor joining thousands of readers questioning his judgment about it, Keller said mildly that we would just have to disagree on this one.

Say what you will about whether this was a worthwhile story, one with the wrong emphasis, or inappropriate scandal-mongering, it is pretty clear the Iseman part of the story came from disgruntled former Republican aides to McCain, probably in the neighborhood of John Weaver. Thus, it fits into this larger list of stories that serve not so much as proof of NYT fair-mindedness, but of its willingness to regurgitate oppo research in the service of powerful–often Republican–political opponents.

Then, finally, there’s the story that Hoyt doesn’t mention, to his significant discredit–the ACORN Pimp Hoax. Read more →

Tired McCain a Foundering Gluehorse Without Weaver

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There has been some speculation and gossip spurred by Dan Nowicki’s report in the Arizona Republic that John McCain is shaking up his campaign staff:

Sen. John McCain is shaking up his campaign leadership team as the Arizona Republican readies for an all-out ground fight in his closely watched GOP primary battle against former Rep. J.D. Hayworth.

Campaign manager Shiree Verdone is moving to a 2010 “Republican Victory” fundraising operation. Mike Hellon, a former Arizona Republican Party chairman who had a part-time role as deputy campaign manager, will join her there.

Neither Verdone nor Hellon was fired, said Brian Rogers, McCain’s campaign spokesman, who confirmed the staff changes Friday in a statement to The Arizona Republic.

Gossip magnet The Politico has picked up the deck chair rearranging too, as have the cable cluckers. Thing is, if you know McCain, there is no real “shake up” since the core of his election organization, which has been around him a long time, is almost completely intact and in charge. As Nowicki noted further down in his article:

McCain’s strategy and decision-making brain trust of longtime advisers Rick Davis, Charlie Black, Mark Salter, Carla Eudy and Mark Buse remains intact.

So, the term “shake up” is pretty much hyperbole; McCain’s posse is quite intact. In fact, you almost have to wonder whether this “shakeup” is about some kind of money cost laundering – shifting expenses somehow – since these staffers are just joining the RNC AZ staff.

The above being said, McCain has been publicly revealing the inner tired old gluehorse he really is an awful lot lately. McCain has always been the supreme narcissist whose only concern at any given time or situation is limited to what he thinks helps John McCain. His willingness to wildly say anything, no matter how inconsistent or absurd, has really been on full display lately, most notably with his craven about face on immigration and the “dang fence” (which even had fellow Arizona Republican John Shaddegg laughing).

So, what is missing for Old Gluehorse McCain? Why is McCain’s hypocritical narcissism more glaring than usual? No John Weaver that is why; and Weaver’s absence is why I said above that McCain’s team is “almost completely intact”. John Weaver was the smarts of the outfit who made the “McCain the Trusted Maverick” gloss up out of whole cloth and had the good sense to keep the real McCain on a short leash and away from the hypocritical stupidity he is naturally prone to. For a really excellent look at how Weaver made the McCain the press fell in love with, take a look at this Texas Monthly article (simple registration may be required, but it is quite good).

The Old Gluehorse should have been put out to pasture long ago; it is just more obvious now without John Weaver.

[graphic by Neil Alderney]

The “Detainees Subject to the Review”

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MadDog linked to the letter that Dennis Blair and Eric Holder sent the Senate describing the process by which 6 agencies and a 100 staffers meticulously decided the ultimate fate of Gitmo detainees–who could be released or imprisoned elsewhere, who could be tried, and (presumably) who had to be held indefinitely. It might be a reassuring letter for its portrayal of the deliberation and rationality applied to Gitmo detainees.

Except for this phrase, repeated twice: “all 240 detainees subject to the review.”

After carefully considering each case, the six agencies reached unanimous agreement on disposition determinations for all 240 detainees subject to the review.

[snip]

After all of the deliberations described above, the DNI-either personally for cases considered by Principals or by delegation to the ODNI official on the Review Panel-agreed with the other five agencies on disposition determinations for all 240 detainees subject to the review.

This process, apparently doesn’t apply to all detainees. Only the detainees “subject to the review.” Now perhaps they’re just making the distinction between Gitmo detainees and those in some black hole in Bagram or some other secret site. But it sure seems to be referring just to Gitmo detainees. In which case, there must be other Gitmo detainees, outside of the 240, who are not “subject to the review.”

Why? Who are they?

Executive Order 13492, which instituted this review, provides two potential hints. First, it provides this definition:

(c) “Individuals currently detained at Guantánamo” and “individuals covered by this order” mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

This would seem to leave out detainees held by CIA or contractors (maybe?). And it would seem to leave out those detainees whom DOD had simply never called nor treated as an enemy combatant. You know those family members Mary keeps asking about? They wouldn’t be enemy combatants, would they?

The EO also suggests DOD would have authority over any other detainees.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

So while this letter to the Senate sounds like a wonderful work of rational deliberation, it also seems to hint at some remaining Kafkaesque hole, whereby some people who have not been deemed enemy combatants remain in some arbitrary limbo not covered by this great display of rational deliberation.

Update: Hmmm is right: the EO lets the Secretary of Defense do what he will with all the other detainees (which I guess makes it especially useful if your Secretary of Defense is an old Chief Spook). I’ve fixed the post accordingly.

The Latest Rahmlinology

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I wonder how Greg Craig–ousted from the Administration because he tried to do the right thing on Gitmo–feels about this.

In December 2008, Obama, Emanuel and Republican Sens. John McCain (Ariz.) and Lindsey O. Graham (S.C.) met in Obama’s transition headquarters in Chicago to discuss detainee policy. According to Graham, Obama turned to him at one point and said, ” ‘I’m going to need your help closing Guantanamo Bay. . . . I want you and Rahm to start talking.’ ” They did, and as the discussions progressed, Emanuel grew wary that closing the U.S. military prison in Cuba was possible without opening a slew of other politically sensitive national security problems ” ‘This stuff is like flypaper,’ ” Graham recalled Emanuel saying. ” ‘It will stick to you.’ ”

Graham said Emanuel was well aware that his and any other Republican support for closing Guantanamo Bay hinged on keeping alleged Sept. 11 mastermind Khalid Sheik Mohammed out of civilian court.

According to a person familiar with the conversations, who discussed the confidential deliberation on the condition of anonymity, Emanuel made his case to Obama, articulating the political dangers of a civilian trial to congressional Democrats. Attorney General Eric H. Holder Jr. presented a counterargument rooted in principle, for civilian trials.

The implication, of course, is that Rahm met with the two Republicans on his own. If so, at the very time Rahm was letting Lindsey Graham demand the shredding of the Constitution, Greg Craig was executing the ham-handed report that, though transparently lame, managed to free Rahm of the taint of Rod Blagojevich.

Rahm wouldn’t have survived into the first days of this Administration without Craig’s work. Some gratitude, Rahm.

And remember how one of the reasons why Craig was ousted was because he wasn’t consulting with Congress enough? Well, it sounds like that was a problem, for Rahm, because that’s how he fancied he’d control the process.

“During this whole civilian-trial debate, Rahm’s gut instincts knew that taking KSM to New York for civilian trials was going to be a misstep,” Graham said. “He has a better ear for domestic politics on this issue than anybody in the administration, quite frankly.”

With the Justice Department in charge, Emanuel tried to keep tabs on the process through Graham. “He’d say: ‘How’s it going? Did you tell them they were going to lose you?’ And in terms a sailor could understand.”

One administration official close to Emanuel did not dispute that Obama had overruled Emanuel on some key policy issues. “It’s not germane what the discussion was beforehand, what his idea was, because once a decision is made, he puts himself whole-hog behind it,” the official said of Emanuel. “It would be difficult for people to discern what his [original] position was.”

Except that it was not difficult at all. It has been clear since August that Rahm has been actively undermining Craig and Holder’s efforts to hew to the rule of law. Doing so, in fact, with the guy who lost the election in 2008, John McCain, who still behaves at every turn like someone trying to take down his political opponent. That’s who Rahm has been sleeping with in his efforts to thwart the rule of law.

No wonder we’re seeing so many artificial “Save Rahm!!” stories.

McCain Owes Pelosi an Apology

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Back in May, when Nancy Pelosi was pointing out, correctly, that she had not been briefed that the CIA was already in the torture business, John McCain joined the rest of his party in suggesting that Pelosi could have prevented the torture. He suggested that his efforts–he focuses on 2005, ignoring that he basically capitulated on a Nuremberg Defense in the Detainee Treatment Act–were successful in preventing torture.

"Let me just tell you — I was briefed on it — and I vehemently objected to it. We did the Detainee Treatment Act, which prohibited cruel, inhuman and degrading treatment. So we felt, I certainly felt, I could act on it."

He dismissed her claim she was barred from acting on what she learned in the briefings with a shrug.

"I’m sure she has her argument and we’ll see if the American people agree."

Today it’s McCain’s turn to insist he did all he could to prevent torture. In the Time article I cited earlier, McCain is left to insist, futilely, that he complained specifically about the proposed use of sleep deprivation.

An aide to McCain said that in meetings with Hayden and others, McCain raised the story of Orson Swindle, a friend of McCain’s who suffered forced sleep deprivation through stress positions as a captive of the North Vietnamese.

Of course, we now know that between the CIA and Steven Bradbury, the torture apologists were actually using McCain’s name in support of the use of sleep deprivation. Presumably, then, those two detainees with whom sleep deprivation was used in August 2007 and October 2007 were abused in spite of McCain’s complaints. 

Neither of these politicians were heroes in their opposition to torture. But the public record makes it clear that Pelosi measured the Bushies much better than McCain: even opposition like that McCain voiced was turned into support for abuse. 

And its time both the Democrats and the Republicans opposing torture acknowledged that fact, because it’s a key step to holding those responsible for torture accountable. 

More CIA Lies about Torture Briefings

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Time has an important story matching a claim made in Steven Bradbury’s July 20, 2007 OLC memo about Congressional briefings on torture with what the Senators themselves (particularly John McCain) say about briefing they received. The claim–which appears in the middle of a discussion about what shocks the conscience (pages 43-44)–is this:

Nevertheless, you have informed us that prior to passage of the Military Commissions Act, several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein and that, General Hayden explained, would likely be necessary to the CIA detention and interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate. Many of those Members thereafter were critical in ensuring the passage of the legislation, making clear through their public statements and through their votes that they believed that a CIA program along the lines General Hayden described could and should continue.

The Time article focuses closely on McCain’s objection to this representation:

A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.

Less prominent, but important given her current position as Chair of SSCI investigating–among other things–CIA’s lies about briefings, is this objection from DiFi:

In the weeks that followed, according to a person familiar with matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about use of enhanced interrogation techniques.

Now, some of the people briefed have already raised objections about the characterizations made of these briefings (for example, Feingold wrote a letter objecting to the program and later wrote objecting to Hayden’s representations of his briefings on the program). Read more →

Why Did CIA Hide Dick Cheney’s Role in Briefing?

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Thanks to the WaPo for confirming something I guessed last month. Back then, I wrote,

I’m going to make a wildarsed guess and suggest that when the CIA lists "not available" in a series of 2005 torture briefings to Republicans in Congress, they really mean "Dick Cheney attended, but we don’t want to tell you that."

Today, the WaPo reports,

Former vice president Richard B. Cheney personally oversaw at least four briefings with senior members of Congress about the controversial interrogation program, part of a secretive and forceful defense he mounted throughout 2005 in an effort to maintain support for the harsh techniques used on detainees.

[snip]

The CIA made no mention of his role in documents delivered to Capitol Hill last month that listed every lawmaker who had been briefed on "enhanced interrogation techniques" since 2002. For meetings that were overseen by Cheney, the agency told the intelligence committees that information about who oversaw those briefings was "not available."

[snip]

The CIA declined to comment on why Cheney’s presence in some meetings was left out of the records.

[snip]

Several members of Congress who took part in the Cheney meetings declined to comment on them, citing secrecy concerns.

In one of my most unsurprisingly correct wildarsed guesses ever, Cheney was working with the CIA to keep his little torture program, and neither the CIA nor the Republicans he was arm-twisting want to talk about it.

But that ought to be worth some closer attention. WTF did the CIA hide Cheney’s role in these briefings (not to mention the date of their briefing with McCain)? It reveals not only a desire to hide the degree to which these "briefings" under Porter Goss became active lobbying in support of torture, but also the degree to which the CIA is working actively, with a former Administration official (Cheney) to hide their collaboration.

The article does provide two more important details that add to the damning story.

Cheney’s briefings on interrogations began in the winter of 2005 as the top Democrats on the Senate and House intelligence committees,  Sen. John D. Rockefeller III (W.Va.) and  Rep. Jane Harman (Calif.), publicly advocated a full-scale investigation of the tactics used against top al-Qaeda suspects.

On March 8, 2005 — two days after a detailed report in the New York Times about interrogations — Cheney gathered Rockefeller, Harman and the chairmen of the intelligence panels,  Sen. Pat Roberts (R-Kan.) and  Rep. Peter Hoekstra (R-Mich.), Read more →

Scrapple and Pelosi

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Yes, I’m glad that Arlen "the Scrapple formerly known as Haggis" Specter has come out in support of Nancy Pelosi’s suggestion that CIA misled her in her September 2002 briefing.

"The CIA has a very bad record when it comes to — I was about to say ‘candid’; that’s too mild — to honesty," Specter, a former chairman of the Senate Intelligence Committee, said in a lunch address to the American Law Institute. He cited misleading information about the agency’s involvement in mining harbors in Nicaragua and the Iran-Contra affair."Director [Leon] Panetta says the agency does not make it a habit to misinform Congress. I believe that is true. It is not the policy of the Central Intelligence Agency to misinform Congress," Specter said. "But that doesn’t mean that they’re all giving out the information."

Because of leaks that have come from Congress, Specter said, he understands the agency’s hesitancy to disclose all its information.

"The current controversy involving Speaker Pelosi and the CIA is very unfortunate, in my opinion, because it politicizes the issue and it takes away attention from … how does the Congress get accurate information from the CIA?" Specter said. "For political gain, people are making headlines."

But one thing should be mentioned about Specter’s comments. Note that Scrapple, unlike John Boehner and Crazy Pete Hoekstra and John McCain, doesn’t claim to know WTF Pelosi was briefed.

Rather, his statement is general (a sentiment Specter probably formed when he was on SSCI): Specter’s noting that CIA is less than forthcoming with Congress, and that that needs to change. (He’s also correctly suggesting that those making headlines are doing so for political spin.)

The distinction is important. This whole debate has largely been drummed up by people who have no fucking clue how CIA briefed Congress in 2002. It’d be nice if that kind of rank ignorance wasn’t making the headlines anymore.