Who Arrested and Interrogated Hussein Abebe?

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Mary and I both noted the suggestion in Judge Lewis Kaplan’s summary opinion refusing to let Hussein Abebe testify against Ahmed Khalfan Ghailani that Abebe himself was coerced to testify.

Kaplan’s complete ruling provides more details. At the very least, Kaplan’s opinion points to an entire day of Abebe’s  interrogation–the day on which he first confessed to having provided Ghailani the explosives for the embassy bombing–about which the government is withholding evidence. The unredacted portions of the ruling note that this means the people interrogating Abebe may well have used details from Ghailani’s own interrogation to convince Abebe to confess, which would exacerbate the poisoned fruit aspect of Abebe’s confession. And while Kaplan doesn’t say it in any of the unredacted portions, there is also the possibility that Abebe himself was abused on that day of his interrogation.

But just as interesting is the question of who conducted that interrogation. While the government and the Tanzanian national police claim members of the TNP were present, Kaplan found the TNP weren’t in charge the interrogation. So what entity was conducting this potentially coercive interrogation?

Abebe confessed to selling Ghailani explosives in a vaguely-described August 2006 interrogation

Let’s start with the chronology.

Late July or early August 2006: Abebe receives call from “Mr. Mazoa” instructing him to meet with some unnamed people in Dar es Salaam on the 13th.

August 12: Valentine Mlowola, then Senior Superintendent of the TNP, first briefed about impending Abebe arrest.

August 13: Two men (whose names and affiliations are redacted) get into Abebe’s taxi in Arusha and direct him to the police station. They meet Mlowola there, and apparently all four take a cab to Kilamanjaro Airport and then fly to Zanzibar and from there drive to a location which Abebe described as looking like a hotel.

August 14: Abebe meets a Sadek Majid, whom Abebe knows from Arusha. Tanzanians interrogate him with no Americans present; he does not confess to having sold Ghailani the explosives on that first day.

August 15: Tanzanians interrogate him, again with no Americans present. He confesses to selling Ghailani the explosives.

August 16: Four FBI agents arrive. They Mirandize Abebe, then conduct three interrogation sessions, during which he presumably repeats his description of selling Ghailani the explosives.

August 17: The FBI agents conduct one more interrogation session, then leave.

August 19: Tanzanians fly Abebe to Dar es Salaam and hold him in jail for four additional days.

August 24: Tanzanians release Abebe on a bond accusing him of conspiring to murder and terrorist acts.

Now, much of the narrative describing this chronology–including all but a few sentences describing Abebe’s interrogation by Tanzanians–is redacted. But several things are clear.

The Tanzanian Police did not have the lead on Abebe’s interrogation

First, while the TNP were involved in Abebe’s arrest, they were really only brought in as an afterthought. Kaplan writes:

Mlowola was drawn in only on August 12, primarily because it was thought helpful to have the TNP involved in making the arrest.

Since the TNP were only brought in on August 12, we can be sure that the man who called Abebe two weeks earlier and introduced himself as “Mr. Mazoa” was honest when he indicated that he no longer worked with the TNP.

In late July or early August, roughly two weeks before his arrest, Abebe received a phone call from a man who identified himself as Mr. Mazoa. Mazoa told him that Abebe did no know him, but that he was a well-known person who used to work at the police station in Arusha.

He then instructed Abebe to travel to Dar es Salaam because “there are some people who would like to talk to you [there] on the 13th.” When Abebe asked who wanted to speak with him in Dar es Salaam, Mazoa said, “you’ll know them when you come.” Abebe responded taht he could not afford to travel to Arusha, at which point Mazoa suggested that he take out a loan to pay the travel costs and that Abebe later would be reimbursed.

So someone, no longer employed by the TNP, calls Abebe and tells him to take a loan out to travel to Dar es Salaam. When he doesn’t do that, on the 13th two guys get in his cab, take him to the police station (which appears to be the first time when the TNP get involved) and from there fly him to an interrogation location.

TNP officers were present at the interrogation

Though at least one TNP officer was present for at least part of the interrogation: Mlowola. Kaplan notes that Abebe and Mlowola’s testimony conflicts on this point.

According to Mlowola, he was the lead questioner and there was only one interrogation session involving Tanzanians alone. Abebe, on the other hand, said he was questioned by the Tanzanians alone for two full days and that Mlowola was not present during either of those sessions.

Kaplan resolves this conflict this way:

Having considered all the evidence, the Court finds that Abebe was interrogated by the Tanzanians alone through August 14 and 15, [redacted] that Mlowola was present for at least part of it, and that the testimony of both Mlowola and Abebe as to Mlowola’s role and presence was inaccurate in material respects. Abebe was wrong in saying that Mlowola was not there at all and falsely described Abebe’s own state of mind and motives. Mlowola was mistaken concerning his role in the questioning and the number of sessions.

Kaplan also repeatedly refers to notes taken by a TNP officer (as I’ll discuss further below). That would imply that at least one more member of the TNP, in addition to Mlowola, was present. Yet since the government did not submit those notes as evidence (or have that officer testify), that may not be reliable.

No Americans were “present” at the key interrogation

As I said above, Kaplan’s unredacted narrative states that no Americans were present for the first two days of Abebe’s interrogation, though he footnotes that statement and the footnote (which appears to be two lines long) is entirely redacted. Later, Kaplan notes,

Whether by design or otherwise, there were no Americans whose presence could be compelled by an American court in the room.

I find that entire construction fascinating. Is Kaplan qualifying “Americans” with “whose presence could be compelled” to suggest there were Americans there whose presence couldn’t be compelled (such as CIA officers)? Or is he distinguishing between Americans “in the room” and Americans who might be observing but not present? If so, all of that is left unsaid. This sentence is followed by a redacted sentence, so Kaplan may have said more about this that got redacted.

In any case, the FBI remarkably swoops in on the day after Abebe confesses, and proceeds to get a Mirandized version of Abebe’s earlier confession. As if they had been waiting just outside the door for the moment when he confessed so as to get a version that would be admissible in a US court.

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Judge Kaplan: Government Couldn’t Use Abebe as Witness in Military Commission, Either

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I’m going to have a longer post about some curious details revealed in Judge Lewis Kaplan’s order refusing the government request to have Hussein Abebe testify against Ahmed Khalfan Ghailani. But I wanted to point to a footnote in which Kaplan anticipated the critics now claiming that if Ghailani had been tried in a military commission, the government could have called Abebe as a witness (thanks to twolf for help with this file).

It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding.

Military commissions are governed by the Military Commissions Act, 10 USC 948a et seq. (the “MCA”). Evidence in such proceedings is governed by the Military Commission Rules of Evidence (“MCRE”). U.S. DEP’T OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2010 ed.).

MCA 948r(a) and MCRE 304 preclude or restrict the use of “statements obtained by torture or cruel, inhuman, or degrading treatment,” and evidence derived threrefrom, and could require exclusion of Abebe’s testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding.

Those crazy Article III judges pointing to inconveniences like the Constitution again!

Of Course the Intelligence Authorization Would Have a Signing Statement

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Because that’s just how these carefully crafted bills are treated by Presidents guarding their Executive Power.

DDay pointed me to the signing statement that Obama issued in conjunction with the new Intelligence Authorization. There are three key points, IMO.

Presidents still control all the secrets

One thing Obama does is reaffirm the President’s right to control all the secrets.

Section 331’s requirement to provide a “general description” of a covert action finding or notification provides sufficient flexibility to craft an appropriate description for the limited notification, based on the extraordinary circumstances affecting vital interests of the United States and recognizing the President’s authority to protect sensitive national security information. [my emphasis]

I’m not all that surprised or bugged by this. Basically, he seems to be saying that the members of the Intelligence Committees who just won the right to be briefed on covert operations will have to be very creative to understand the statements crafted with “sufficient flexibility” to keep them in the dark. But hell, this is still a damn sight better than it was.

Note, though, that Obama insists–as most of the legal filings we read here do–that the President retains all of the authority over secrets (presumably including deciding when to leak them broadly to people with no clearance).

Congress still won’t get to see OLC memos

I’m rather more intrigued by this statement, which I take to suggest that the Administration will share the “legal basis” (as in, “the AUMF”) for covert ops, but won’t share documents over which the Administration claims a privilege (which in the past has included OLC documents).

Also, as previously indicated, my Administration understands section 331’s requirement to provide to the intelligence committees “the legal basis” under which certain intelligence activities and covert actions are being or were conducted as not requiring disclosure of any privileged advice or information or disclosure of information in any particular form.

This is pretty important, given that last we heard there were OLC documents authorizing FBI wiretaps and drone strikes that–as far as we know–remain totally secret. Which still means the President will insist on writing law for himself until the Courts tell him differently.

Congress may never know the results of John Durham’s investigation

Then there’s this bit, which would clearly include John Durham’s investigation of the former and some still current members of the intelligence community (heck, it might even include John Brennan’s role in Dick Cheney’s illegal wiretap program).

In accordance with longstanding executive branch policy, my Administration understands section 405’s requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information.

Not only does this say that Obama refuses to let the Inspector General tell Congress whether there will be any accountability for torture, or even (given the broad claims the Administration made to shield Dick Cheney’s Plame testimony) what Durham found after he has closed his investigation, but it also suggests that the IC IG may not tell Congress things that CIA’s IG told Congress in the past. For example, this would cover some of the deaths by torture which were investigated but not prosecuted. So long as DOD or DOJ could claim to be investigating them, it seems, the IC IG would not necessarily tell Congress of the investigation.

Perhaps more troubling, this statement would seem to shield all of FBI’s investigative work–things like surveilling peace activists and conducting data mining of its massive databases.

I’m going to do some more research on what Obama’s trying to do with his statement about whistleblowers.

Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton’s stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for Fiscal Year 1999.  See Statement on Signing the Intelligence Authorization Act for Fiscal Year 1999:  Public Papers of the Presidents of the United States, William J. Clinton, 1998 (p. 1825).

But I assume it sharply limits the rights of intelligence community whistleblowers.

This is not as bad as some of Cheney’s signing statements.  But it’s clear that the President wants to avoid oversight of his super duper powers.

Kaplan’s Decision Not Just about Coercion of Ghailani, but Also of Abebe

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The usual suspects are out wailing that Judge Lewis Kaplan’s order, excluding the testimony of Hussein Abebe from Ahmed Ghailani’s trial, proves civilian courts don’t work for terrorism. Glenn rounds up more of the whiners and notes that you really can’t complain about Kaplan’s decision and still claim to believe in rule of law.

I wanted to add just one detail to the discussion bmaz offered yesterday (and thanks to him and Mary for watching the likker cabinet while I was away).

Kaplan rejected Abebe’s testimony not just because of the CIA’s coercion of Ghailani, but also because of possible coercion of Abebe himself.

Mary noted Kaplan’s suggestion that the witnesses put forth by the government either did not include all the witnesses who should have testified that Abebe would testify voluntarily, or weren’t themselves credible. Here’s what Kaplan said:

On the basis of that record – including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities – it now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.

And here’s what Mary wrote about it:

It makes it sound as if the issue isn’t just how attentuated the evidence from the coercion, but also how credible the witnesses. The “only witnesses called to testify who were actually present” – for some reason this makes me wonder if the court was aware that there were clearly other witnesses present when Abebe was being “persuaded” and they were purposefully not being provided to testify? And it makes you wonder about the persuasion. Being persuaded and being questioned have some different feel to the underlying words.

Kaplan’s earlier order dismissing the government’s other justifications for calling Abebe as a witness indicates the source of his skepticism–at least as it was before later hearings on the question [note, the earlier filing redacted Abebe’s name, though I’ve put it in where it contextually must be the redacted word].

It is entirely possible that [Abebe] if he were to appear, would be a willing witness. But the burden of proof on the attenuation claim [in which the government relies on Abebe’s willingness to testify to claim it had little to do with Ghailani’s coerced testimony] is on the government. It has submitted no affidavit from [Abebe]. Moreover, there is evidence that arguably undermines the government’s claim. The circumstances of [Abebe’s] initial questioning, at least to the extent that the Court has been made aware of them, perhaps suggest that he is not simply a public spirited citizen who “has come forward [to] offer evidence entirely of [his] own volition.” He was arrested by Tanzania, flew to a distant location, held there for days, and questioned by Tanzanian police before the FBI questioned him. Indeed, he told the Tanzanian authorities at the time of his arrest “that he knew this day would come–that he had been waiting eight years for the authorities to locate him.” The record discloses nothing about what happened while he was in Tanzanian custody, and it is sketchy even about what took place after the FBI arrived. We know only that [Abebe] was released after he was questioned by the FBI and promised to appear as a witness in this case.

The suggestion, of course, is that Abebe may have himself been subject to physical coercion, and at the very least he was only freed after agreeing to testify in Ghailani’s trial, which doesn’t make him a very voluntary witness. Kaplan’s references to the credibility (or not) of the witnesses who testified as well as his suggestion that not everyone involved in Abebe’s interrogation did testify probably suggest he suspects that those other law enforcement officers involved (I’m guessing there has to be at least one Tanzanian official and one US official who didn’t testify) would not be able to testify that Abebe’s testimony was voluntary.

Mind you, for the usual suspects, piling coercion on top of coercion doesn’t much make a difference. And it seems that the government has at least one other witness who knew (perhaps identified through Ghailani’s torture) that a Hussein–who appears to be Abebe–was involved in the plot.

But it sure seems that the problem is not just that they tortured Ghailani and now want to use his testimony under torture to help convict him, but that they may have continued to coerce witnesses–in unknown ways–to get a conviction for Ghailani.

First Gitmo Habeas Case Makes Way To SCOTUS

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In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.

Where’s Cheney and His Freon Pump?

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Well this is good news, the United States Department of Justice is interested in finding and prosecuting human rights violators here in the “Homeland”. From the special announcement from DOJ:

The Human Rights and Special Prosecutions Section actively seeks out information that may assist the U.S. Government in identifying human rights violators who may have entered the United States.

If you know of anyone in the United States or of any U.S. citizen anywhere in the world who may have been involved in perpetrating human rights violations abroad, please contact HRSP either by email at [email protected] or by postal mail at:

Human Rights and Special Prosecutions Section (Tips)

Criminal Division

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

You do not have to identify yourself when providing information. Please provide as much detail as possible, such as:

* the suspect’s name, place and date of birth,

* physical description, and current location;

* the suspect’s alleged human rights violations including the locations and dates of those activities;

* how you learned of the suspect’s alleged activities and when and where you saw the suspect.

We are unable to reply to every submission; however, your information will be reviewed promptly by HRSP.

Information on non-U.S. citizen suspects living in the United States may be provided to Immigration and Customs Enforcement in the Department of Homeland Security, at 1-866-347-2423 (a toll-free call).

Anybody here have any suggestions for the DOJ?? Glenn Greenwald has more.

The Compromise Intelligence Authorization

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As DDay noted, it looks like we’ll finally have an intelligence authorization bill. The bill is a partial win for Speaker Pelosi, as it makes full briefing to the Intelligence Committees within six months of the start of a program the default (though the Administration can still avoid doing so if it provides written rationale). And it includes at least a nod to Pelosi’s demand that GAO be giving some authority to review intelligence programs. Steven Aftergood calls the GAO access “a foothold.”

The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs,

It remains to be seen whether this compromise will give Congress enough new oversight powers to prevent the abuses that happened under Bush (and heck–I assume the Gang of Four, if not the Gang of Eight–has signed off on assassinating US citizens solely on the President’s say so, so it’s not clear that oversight will be any use in protecting the Constitution). But Jeff Stein reports both Pelosi and DiFi declaring victory, while the White House and DOD remain silent. Here’s Pelosi:

“In passing the Intelligence Authorization Act last night, the Senate upheld our first responsibility – to ensure the security of the American people – while addressing two key objectives,” Pelosi said in a statement Tuesday.

“It expands and improves the congressional notification process for covert action and provides the framework for GAO access to intelligence community information so that the GAO can conduct investigations, audits, and evaluations as requested by Congress,” Pelosi said.

Again, I remain skeptical, but at least this is better than nothing.

Think of it this way. Under these rules, the Bush White House would have had to tell the entire Intelligence Committees they were systematically torturing prisoners by February 1, 2003 (or at least admit in writing they hadn’t and wouldn’t inform the committees, rather than altering documents after the fact to pretend they had). Technically, they would have to have informed Congress of the September 17, 2001 finding dubiously used to authorize the torture program by March 17, 2002. As it happened, they apparently didn’t brief any Democrats that they were torturing prisoners until February 5, 2003, at which point the one they did brief (Jane Harman) objected in writing (and asked whether the President had signed off on the policy, which presumably meant she had never been briefed on the actual finding). We know Bob Graham had been proposing oversight of the interrogation program by that point, backed by a majority of the committee, even though he had no clue they were torturing (though Tony Blair apparently did). So it’s possible Congress would have at least demanded more information sooner about the torture under this system.

That may not have been enough to forestall Dick Cheney’s torture program. But it might have subjected it to at least a little more review.

At which point–as presumably has happened on Presidential hit lists–the blame for our egregious abuse of the Constitution would be more widely shared.

Congratulations, Intelligence Committees: you now share in the moral responsibility to protect the Constitution. Please take that responsibility seriously.

Speaking of that Beacon of Hope in Iraq

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Mark Hosenball first reported this back in July, then linked back to that report last week. But given yesterday’s post on our what we’ve accomplished in Iraq, I thought it worth noting that the most inflammatory material in the next big Wikileaks dump–which appears to be the Iraq war log Bradley Manning leaked–reportedly pertains to Iraqi abuse of detainees.

According to one of the sources, the Iraq material portrays U.S. forces being involved in a “bloodbath,” but some of the most disturbing material relates to the abusive treatment of detainees not by Americans but by Iraqi security forces, the source says.

We’ll see whether that material has the kind of impact that the Abu Ghraib revelations had.

But that also suggests that we’re prosecuting Bradley Manning–among other things–for leaking information on the torture our client state in Iraq conducts.

That Beacon of Hope We’ve Created in Iraq

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As we discuss whether to abandon rule of law in Afghanistan under General Petraeus, we’d do well to consider how the war Petraeus “won” in Iraq turned out:

On a dull December day in 2009, Rabiha al Qassab, a 63-year-old Iraqi refugee living in a quiet residential area of north London, received a telephone call that marked the beginning of a new nightmare for a family already torn apart by Iraq’s political upheavals.

Her 68-year-old husband, Ramze Shihab Ahmed, had been arrested while on a visit to Iraq, and no-one knew where he was being held or what, if anything, he had been charged with.

Nine months later, Ramze is still languishing in legal limbo in a Baghdad prison. His story lays bare the horrific abuses and lack of legal process that characterise post-Saddam Iraq’s detention system, which human rights groups say has scarcely improved since the darkest days of the dictator’s rule.

[snip]

“They beat him. They put a plastic bag on his head until he lost consciousness, and then they woke him with electric shocks. They told him that if he didn’t confess, they would make his son rape him. They put a wooden stick into his anus,” she says. “They have abused him in every way.”

After days of torture, Ramze signed a confession admitting to being a member of al- Qaeda in Iraq, a claim Rabiha says is absurd. “He would see the bombings on television and say ‘what sort of Islam is this?'” she says. “He was very sorry for all the people who died.”

Human rights experts say that Ramze’s story is far from unique. In a new report on mistreatment in the Iraqi prison system, entitled New Order, Same Abuses, Amnesty International estimates that around 30,000 people are currently being held without charge or trial in Iraq. Many are being tortured with impunity, the group says.

I’m sure our decision to put aside rule of law in favor of “the principal goal” in Iraq has nothing to do with Iraq’s embrace of the same kind of torture that we used–after the WMD rationale was exposed as a lie–to justify our invasion of Iraq.

Here’s the Amnesty report.

If we’re going to insist on continuing this imperial adventure we’re on, we’re going to have to come up with a better rationale than “democracy” or “rule of law” or “freedom from tyranny.” Because all those excuses appear as bogus, at this point, as the WMD one.

A Way Towards The Rule of Law – An Answer to Cap’n Jack

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Justice, what do you care about justice. You don’t even care whether you’ve got the right men or not. All you know is you’ve lost something and someone’s got to be punished. The Ox-Bow Incident.

Nine years after September 11 and eight years after the CIA provided a memorandum to the White House explaining that at a minimum, one-third of the detainees at GITMO were “mistakes” who had been purchased in bounty transactions. Nine years after the Department of Justice covertly elevated the President of the United States as a power above the Constitution and the laws of the United States and seven years after the Department of Justice assisted in allowing the torture of Ibn al Shaykh al-Libi to be laundered through Colin Powell to the UN and to America. So many years after so many incidents, our nation is still being flimflammed over what to do with so-called terrorist detainess. 

Enter Jack Goldsmith with his recent op ed titled, “A way past the terrorist detention gridlock.”  While Marcy and Spencer have already weighed in, I whined until Marcy let me have my own go at this too, because I wanted to provide an alternative route to deal with the “gridlock.”  

Goldsmith’s advice to Obama is to:  (i) keep GITMO open because closing it is hard, (ii) forget civilian criminal actions because they are hard, (iii) forget military commissions because they have no international crediblity and are hard, (iv) get Congress to give the President unchecked and unsupervised powers to engage in forever detentions without respect to guilt or innocence, and (v) use the reality of  forever detentions for the innocent as well as the guilty and other coercion to get detainees to offer up confessions and plea deals and thereby get around the hard parts of civilian criminal suits.   Part (v) includes the caring-compassionate touch of only being recommended if Obama takes the death penalty off the table.  

Despite such awesome[ly bad] advice, GITMO has not proved hard to close because there are not Read more →