July 2, 2009, TD Blog Interview with Charles Gittings
Charles Gittings is the progenitor of the Project to Enforce the Geneva Conventions, a web-site compiling "torture memos" and other evidence of governmental criminality during the so-called "War on Terror," as well as court papers, amicus briefs and other relevant documents. On July 2, 2009, I had the privilege of interviewing Mr. Gittings by e-mail exchange.
The Talking Dog: Where were you on 9-11?
Charles Gittings: I was at the MacArthur BART Station in Oakland, California, waiting for the train to my job in Hayward. I was standing by myself towards the end of the platform reflecting on the anniversary of 9/11/2000 -- the grim day I was laid- off my previous job and found out my girl-friend was leaving me in the space of two hours. That was a nightmare at the time, but it turned out I recovered pretty well.
So I was pondering all that and this guy walks up to me and says: "Did you hear about the two planes that crashed into the World Trade Center in New York?"
I just looked at him and asked, "Two!?", and he said, "Ya."
Then I just shook my head and thought to myself , "It's starting," because I not only wasn't surprised, I'd actually been working on the possibilities and problems of such an attack since 1987.
My second thought was, "We are in deep sh*t," because it was one of the worst case scenarios -- an administration of right-wingers predisposed to over-react militarily and capitalize on the crisis for partisan political purposes... And according to my analysis of that scenario, the principal strategic aim of the attack would be to provoke exactly the sort of reaction it got from the Bush administration in the event.
Life doesn't get much more surrealistic than that day was for me... I'm riding the train to work thinking "I need to be at the Pentagon right now and the bastards wouldn't even take the call if I tried to phone them."
And the other thing I was thinking was: "Whoever and wherever we are, we're all in the Resistance now." I committed myself to do whatever I could however I could right then and there. The whole world was at risk, and not a doubt about it.
The Talking Dog: My understanding is that you were employed in the tech sector, in California, until some point in the early 'aughties ('02?). Shortly after 9-11 (around November 2001, when the President's initial orders concerning treatment of prisoners taken in Afghanistan came out), you began compiling information that collectively has become the Project to Enforce the Geneva Conventions. What are the philosophical underpinnings of the PEGC? Was there anything particular in your background that led this to be an interest of yours? What other "citizen activism" projects of this kind are you aware of (if any), and given that (IIRC), PEGC is largely a one-man show (or is it?), do you have any kind of funding needs (legal research engines, federal court PACER fees, copying, etc.... and if so, how are these needs met?), or do you use exclusively publicly available data?
Charles Gittings: My programming career started in August 1973 at Bank of America in San Francisco, and ended at Mendel Biotechnology in Hayward in July 2002.
But the programming career was merely a fortunate byproduct of me trying to cope with a miserable childhood and figure out who I was and what was important, and it's a long story that goes all the way back to 1954 when I burned my right hand in a mangle (an appliance used for ironing laundry) at the age of 18 months. That required a lot of operations over the next 5 or 6 years, and I was sickly on top of that. My mother read to me a lot when I was little, and I was reading by age three. My Grandmother was my day care, and there was a small but choice library in her front room including a classic WW1-era Encyclopedia Britannica. I didn't read it cover to cover like J. S. Mill did, but I read it a lot.
When I was nine, I read the Iliad and the Odyssey, which made a huge impression on me, and when I was ten, my abusive step-father and the Cuban Missile Crisis combined in way that led me to a conscious decision to absolutely reject adult authority and think for myself... And I was smart enough to understand that I was just a kid who didn't know jack, so if I was going to think for myself and resist the adults I had some serious studying to do.
It was all about power, so I started with Caesar's commentaries, followed by Arian, Xenophon, Livy... By Junior High I was studying Thucydides, Napoleon, and Guderian, etc, and branching out into political theory and philosophy. I drove my teachers crazy, because I was angry, sullen, introverted kid who would ace all the tests but never do any homework at all. Some would give me an F, some would average it out to a C, some would just shrug and give me an A or B -- and I didn't much care one way or another as school was just a prison to me.
At 16 I dropped out, took the SAT, got admitted to college, and soon realized college was even worse, because I was still me and but now was younger than everyone else on top of that. So I quit and decided to spend a year or two playing tournament Chess in order to educate myself in real time decision- making under pressure. After a year, I was nearly a master, but I'd learned what I wanted to learn and didn't want to continue the hermit life of a serious chess player, so I switched to Bridge, because a) it has an added linguistic / social dimension that interested me a lot in the context of decision making, and b) girls play the game, unlike Chess at that time.
So by 21 I was an expert bridge player, got the chance to work as a computer project librarian through a friend of a friend from the Bridge club, quickly established that I'd accidentally self-educated myself to the equivalent of a masters in computer science (the logic is much the same as Chess and Bridge, only easier), a lucky series of events gave me the chance to become a wunder- kinde, and I took off like rocket and never looked back.
And in the background of all that, from 1962 until now, I never stopped studying power, history, politics, military history, strategy, and tactics, philosophy, etc... Just because I'd understood right at the start how important those problems evolved with my understanding of things, that only resulted in me seeing that the problems were even more important and difficult than I'd thought initially.
Then I went through a nasty divorce in 1987 after 11 years of marriage and three kids, and because of my own childhood it devastated me... and the legal aspects of it absolutely enraged me, because the entire legal process was so biased, unfair, and predatory.
So in my misery and rage, a not-so-idle question crossed my mind...
How could one man fight a war against the State of Texas?
Then in a flash it struck me that it was actually possible.
But despite my anger I recoiled in horror because my long study of power had led me to believe that the only real power is reason, and that the great task of facing humanity in the here and now is to learn to live by reason and cooperation instead of force and coercion -- to be truly and fully human and quit behaving like animals. Such a war could easily destroy all of us. Equally, it was fascinating problem of strategy and tactics.
The Talking Dog: Among your efforts have been numerous petitions to legislative bodies and amicus briefs to courts; can you describe what traction (if any) you've gotten with your efforts from these bodies? Have you gotten any "bites" on efforts to obtain counsel (pro bono, discounted, or human rights groups, perhaps) with respect to your proposed "complaints" (or direct criminal complaint and/or civil enforcement complaint)?
Charles Gittings: Well here are my two briefs (the first one, in Hamdi, is Exhibit A to the second, In re Gitmo).
And here are the opinions in the cases:
* Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
* In re Guantanamo Detainee Cases, 355 F.Supp.2d 443 (D.D.C. 2005)
I was happy with the rulings in both, but had some problems with the dicta... a couple of major beefs in Hamdi, a relatively minor detail in In re Gitmo. It's very hard to gauge how much influence you have with an amicus brief. All I know is that the Hamdi brief was the hardest thing I ever did in my life, and I'm very proud of it. Writing it was such a nightmare that I couldn't look at it for a month and half, but after it was finally accepted and I re-read it, I was really pleased with how it turned out. The finished brief only covered about half of the original outline, but cutting it down made it a lot stronger.
As for Congress, I did have direct contact with the Senate Judiciary staff for a few years, and saw some signs they were actually paying attention to the stuff I was sending them, but they don't encourage that sort of thing and it's pretty frustrating all in all.
The Talking Dog: I take it you are aware that there have been a number of proceedings in a number of jurisdictions of relevance; of course, you've submitted amicus briefs in some; have you had any involvement in (including efforts to compile documents) in such proceedings as may be taking place in, say, Spain (the investigation of torture memo lawyers); Germany (considering, though it dropped, charges against Rumsfeld, Wolfowitz and others), Britain (the Binyam Mohammad litigation and others) and Italy (the Abu Omar cases)?
Charles Gittings: Well I've helped a Canadian friend, Gail Davidson of Lawyers Against the War, with her efforts to get the Canadian government to do something about Omar Khadr. I've also had a bit of contact with Cageprisoners in England.
But while I'm supportive of any effort to stop or prosecute the war crimes, from the start I've felt that it was important to prosecute the perpetrators under US law in US courts, because that's what Geneva requires, that's what the laws of the United States say, and getting convictions would establish a precedent that would represent a significant advance and reinforce the precedent of Nuremberg. In his preface to his report on the IMT conference, Justice Jackson stated:
"The most serious disagreement, and one on which the United States declined to recede from its position even if it meant the failure of the Conference, concerned the definition of crimes. The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct. At the final meeting the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all."
That's what the project is about: upholding Geneva and articles 6-8 of the IMT charter with the idea that NEVER AGAIN will such crimes be tolerated or excused.
The Talking Dog: Our friend Candace Gorman frequently uses items you have posted or assembled at the PEGC on her Guantanamo Blog, and in the course of her representations. Are you working with other attorneys or human rights activists in the course of their work?
Charles Gittings: I've had dealings with a number of attorneys in the habeas cases dating back to 2002. I'll do anything I reasonably can to help anyone who asks. I also make suggestions, offer analysis, point out flaws in the government briefs that might be exploited, etc. But I don't talk about contacts in public, and try very hard not to be critical or pushy with the habeas attorneys because while my concerns coincide with theirs to an extent, the individual interests of their clients have to come first for them. (It's an interesting problem even.)
But I'll say this much: a number of those attorneys count as some of the finest people I've ever known.
The Talking Dog: Many of the major human rights groups such as the ACLU, Human Rights Watch, etc. (many of whom are linked to on PEGC) have their own caches of relevant documents available on the Internet; what is the theme of PEGC's collection, and how does it differ from the others? If you can answer this, is there a theme or trends for particular places and particular documents (for example, "for litigation go to CCR", for torture docs, go to ACLU, etc.) that you have discovered (other than "for interviews go to Cage Prisoners"... and the talking dog!)?
Charles Gittings: I don't spend a lot of time looking at what the big organizations do, though I do read their reports now and then. My project has been a criminal investigation first and foremost from the start, and the archive reflects evidence, supporting documents, relevant legal authorities, etc. I've been downloading the petitions and briefs in the detainee cases since 2002 because they afforded me a window on detainee policy and operations, and soon realized the briefs themselves were prima facie evidence of the crimes. Indeed, as far as I am concerned, every time DOJ files a brief or motion in any of the cases it's an offense pursuant to 18 USC 2441(c)(2), even said so in my intemperate little reply brief filed in the DDC five years ago.
The problem was how to get the job done, and my answer has always been to do whatever what might move things an inch forward. That brief and reply was an attempt to stab the governments detainee polices in the heart. I wrote a couple of status reports (here and here) along the way that will give you a pretty good idea.
The Talking Dog: I note that you haven't updated your PEGC blog since the day (my college classmate) President Obama took office. Obviously, a big part of that is because of your health (as you acknowledged in your post), though you also acknowledged in your post of that date that the project only gets harder when the Bush Administration leaves office. Well, it's left office. Do you believe that we have, in fact, hit a hard part? Where do you see things going with respect to recent developments from an Administration whose performance has been "conflicted"... rhetoric about closing Guantanamo within a year, while releasing only a single prisoner; rhetoric about transparency followed by assertion of state secrets privilege in some cases, selective release of some torture memos in others, while still insisting that there won't even be further investigation, let alone prosecution...? How important do you see the role of "citizen activist" in pushing the Obama Administration to do the right thing on this, and given national ambivalence as shown in polls, how hard do you see this ("this" being ultimate accountability for those responsible for turning the United States of America into a torture regime) as?
Charles Gittings: It's actually worse that I thought -- I could never have predicted that the new administration would keep the Bush Defense Department intact. That was a terrible mistake in more ways than one. The task now is to educate Barrack Obama and get him to see how he is being misled by his subordinates. I have to believe it's possible, because the DoD / DOJ policies are simply fallacious and fraudulent, but the trick is getting the president to actually consider the facts.
The Talking Dog: From your perspective as "citizen activist," how would you comment on media coverage of issues surrounding the war on terror, arbitrary detention, torture, bringing those responsible to account, and similar matters?
Charles Gittings: It sucks. Superficial and clueless. God forbid anyone might do any actual analysis of the facts or the law!
That said, there's been some excellent reporting now and then -- within the dreary editorial confrines of the mainstream media. Luckily torture is soooo sexy... if it was just the tens of thousands of innocent people they've murdered over the last eight years...
I try not to think about it too much and just stick to the facts and the law. I want them indicted if it takes 50 years to do it, period.
The Talking Dog: One of the President's day-one executive orders concerned implementation (restoration?) of Common Article 3 of the Geneva Conventions as the base-line standard for treatment of detainees (presumably around the world). Do you see any evidence that this order has been complied with in ways other than lip- service and symbolism-- or would you accept that relaxation of the total isolation regime of many detainees somehow makes USA detention facilities "Geneva compliant"? Do you see this development as encouraging, troubling (because it arguably attempts to gloss over rather than solve serious problems)... or something else?
Charles Gittings: No: it's just more fraudulent make-believe by DoD and DOJ. There have been some efforts to moderate the treatment of the detainees but the whole operation at Gitmo is illegal under both CA3 and CA2, and by "illegal" I mean violations and grave breaches of Geneva and Hague that are criminal offenses pursuant to 18 USC 2441 and potentially carry life imprisonment or the death penalty. From day one until now, the only real purpose of Guantanamo Bay is to perpetrate war crimes in the form of unlawful detentions and systematic 24/7 abuse. It's a damned disgrace.
The Talking Dog: Assuming you've made arrangements to keep the site up for a while, how do you anticipate the contents of the PEGC will be viewed by, say, Americans and foreigners of the future, say, 10, 20, maybe 50 years out? Will this be viewed as an aberrational trip to the dark side, led by peculiarly stupid and venal "leaders"... or, perhaps, as things go further to hell in a hand-basket, will it be viewed as an act of quaintness on your part-- the perceived reality being we weren't nasty enough... any thoughts on that?
Charles Gittings: The site will be staying up no matter what happens with me, thanks to my web host Deb Lagutaris (The Ansible Group) and I'm working on arrangements with a law school to preserve (and hopefully, expand/ improve) both the files and the project.
As for the future, that depends on what happens. First and foremost, we need to prosecute and convict George Bush, Dick Cheney, David Addington, John Yoo and the entire gang for their war crimes. If we do that, it will be a tremendous step forward in a couple of ways -- a huge precedent in both international and domestic law, and equally, a heavy blow for the right wing idiots who've so frequently corrupted our domestic politics. Bonus: it will mean that the laws of the United States are something more than a bad joke the powerful play on the people.
And if we fail, we're looking at more of the same... that's a nightmare scenario that I don't talk about in public, because I don't want to give the wrong people any clues from my analysis of the strategy and tactics of terrorism. That's been a big problem for me (how to talk about something I can't talk about) but the bottom line is that I believe the polices of the Bush administration and Israel are essentially self-defeating and ultimately suicidal. They are playing an irrational game that cannot be won, and being irrational, losing it is just a matter of time. Nobody likes being tyrannized, and no one will tolerate it indefinitely. Israel blathers about their "security", but they were a lot safer in 1948 than they are now.
The Talking Dog: Anything else I should have asked you but didn't, or anything else the public needs to know about these vital issues?
Charles Gittings: Well one thing that I think is very important to understand is that the war crimes were not an aberration, but a part of an overt attempt to completely set aside the law. The torture memos get most of the press, but there's nothing in the torture memos that wasn't implicit in the very first memo John Yoo fabricated for David Addington after 9/11:
John Yoo (David Addington, OVP), THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25).
That memo is nothing less than an attempt to set aside both the Constitution and laws of the United States in their entirety on the theory that the Constitution gives the president the same powers as Stalin, Hitler, or Charles I of England -- pure treason to whatever extent it isn't uncomplicated idiocy and/or fraud.
It's time to quit fearing or compromising with these bastards; they should be treated like what they are: murderous, fascist criminals. The idea that these people acted in "good faith" is just stupid. They are pathological liars and criminals and that is all that they are. The kindest view I can take of any of them is that they are insane.
The Talking Dog: I join my readers in thanking Mr. Gittings for that interesting interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutor Darrel Vandeveld, with attorneys Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, and with Almerindo Ojeda of the Guantanamo Testimonials Project, to be of interest.
June 30, 2009, The end of an era
It seemed like it was going on the length of "the Al Franken decade"... but the Minnesota Senate race is finally over, and soon-to-be Senator Al Franken is absolutely delighted with his win in the Minnesota Supreme Court of the never-ending election contest. Best of luck to Sen. Franken, perhaps the only "celebrity I have met while blogging," whose quip when he began his long campaign was that he was the only New York Jew in the Minnesota Senate race who grew up in Minnesota!
This event gives the Democrats the (we're told) somehow magical total of 60 (counting Specter and Lieberman) that supposedly makes the Democrats Harry Reidfilibuster proof.
Don't buy it for a minute: neither the President nor his party has an agenda terribly much beyond keeping the current crop of Washington insiders happy, so we will see a "progressive-lite" agenda... sure, some more social spending than we would have seen under a Republican Administration, and come to think of it, I can't think of anything else.
We can forget about restoration of the rule of law, tax fairness, electoral reform, health care reform (other than some tepid imitation involving nothing but private insurers' wish lists), meaningful effort on climate change (yes, "cap and trade" is little more than "bait and switch")... or... you get it.
Those who thought that we would get anything meaningful with the White House, a big House majority and now 60 Senators and a huge popular mandate... I'm sorry to disappoint you, but the only thing we have to change is... your expectations. The Democrats have proven to be... well, disappointing, if you happen to have any expectations. So don't.
Just remember what the Republicans did with razor-thin majorities, an unpopular President and an agenda opposed by most Americans... and remember they could only do that with Democrats who, by and large, were jiggy with that program... not ours.
Al Franken will quickly learn just what a single United States Senator can accomplish in such an environment.
Just saying.
June 29, 2009, Disturbing trends...
Well, disturbing trends are picked up by the ever-astute Glenn Greenwald, in this Salon piece in which Glenn observes the Obama Administration's public thought balloons on issuing executive orders pertaining to absolute tyranny "preventive detention" of people who were egregiously tortured "too dangerous to release but who can't be tried." WaPo reports on the same subject(h/t to Michael L.)
Well, you know my opinion on the subject... an opinion joined by the overwhelming majority of Americans polled, who are outraged at the premise of "prolonged detention" absent due process of law.
Glenn also notes the Obama Administration's obsession with secrecy which may be even more troubling than his predecessor's obsession, along with other policies that are quite consistent with... the Bush Administration...
I'll just say it: we wuz lied to. Barack... you a damned liar. We wuz promised "change" in this area... that "the dichotomy between our security and our principles is a false one" and all of that high sounding rhetoric, that, as some feared, was just empty oratory. Maybe there is a tactical necessity for this (heading off a rogue military and intel apparatus)... but I don't care; our duty as citizens is to be outraged, and to call our so-called Democratic leadership out on this.
"Preventive detention" is nothing short of tyranny. We used to condemn this sort of thing when China or Russia or Egypt or Sudan or Burma or other states we regarded as having miserable human rights records did it... and now, despite a written Constitution requiring due process of law and other Bill of Rights protections... our executive aims to do the same thing... And now, we can no longer blame the despised and scowling Dick Cheney (overpowering the clueless man-child George W. Bush)... but the handsome, articulate Constitutional law professor lecturer, the First Black President of Harvard Law Review and the First Black President of the United States: a man elected on a nebulous platform of hype hope and more of same change... is disappointing us on an Olympic scale.
All I can say to the President is... Barack, man, do some boning up on that damned Constitution you're supposed to be an expert about. Get with the program, man, and I do not mean the "enhanced interrogation" and "preventive detention" program.
June 28, 2009, The future is now
So many alarming trends at once reflected in this story, of a premature infant born in Ontario to Canadian parents, transferred to the only nearby neo-natal unit available, that across the border in Buffalo, NY. Obviously, Canada should have enough capacity to treat the medical needs of its own citizenry, and this will doubtless be hailed by some as a demonstration of the inferiority of all forms of socialized medicine. Of course, even here in "every man, woman and infant for himself land," it is still possible to occasionally encounter times when certain treatments are unavailable... All troubling enough.
But the more troubling (and relevant) point is that the parents, who do not have passports, were not permitted to accompany their critically ill child across the border, because, well, they lack passports, and no provision will be made for them until the next business day, probably not until Monday afternoon, by which time, various critical medical decisions may have to be made concerning the child over the telphone. Thanks to bureaucracy (and a recent change in law requiring a passport for all U.S-Canada border crossings, at least into Fortress America), the parents and child will just have to wait to see each other again until... whenever.
A cautionary tale from the dystopic future about unfeeling, uncaring bureaucracies and rules "to make us safe"... delivered to us right now.
June 25, 2009, The end of days
Ed McMahon died earlier in the week well into his 80's; he had a helluva life, as the tandem member of perhaps the perfect dual straight man opposite Carson's straight man, and... all the other stuff.
But I just don't remember a day like this, where Farrah Fawcett died well before her time at only 62 after a struggle with cancer... but like a bolt from the blue, actor Jeff Goldblum fell from a cliff in New Zealand to his death at only 56, and the King of Pop himself, Michael Jackson, died of some sort of cardiac arrest at only 50. All one can say is... whiskey tango foxtrot? Well, two out of three anyway, as it appears, Goldblum isn't actually dead. Just what happens when it's the end of days.
And it's not that our country's obsession with the war on drugs resulted in strip-searching a thirteen year old girl: what's significant of "end of days" is that the U.S. Supreme Court, by an 8-1 margin, would find that it's actually an unconstitutional search. Obviously, the right result: a protection of civil rights of a powerless individual, in the era of the Roberts Court? End of days...
A Southern cracker governor who got cheers from his own party for suggesting the poorer (darker skinned) citizens of his state can screw themselves rather than see him take federal stimulus money, has now, after one iddy biddy affair in Argentina that required him to be AWOL from his duties for nearly a week while lying about being on a hike on the Appalachian trail... reached the point where several politicians are calling for his resignation. Crying in Argentina... or perhaps The Crying Game... stick around, as the mystery unfolds...
And we could be watching the beginnings of the end of days the regime in... Iran, as protests continued, near the parliament, even as the Ahmadinedjad/Khamanei regime continues defiantly on...
On a lighter note, I give you the New York State Senate... if it weren't responsible for legislation in my own state, it would be absolutely hilarious... except it isn't.
June 21, 2009, Lolla-Palau-za
In a Grey Lady op-ed by Stuart Beck, Palau's UN rep, he debunks the right-wing meme that alleges that Palau will be taking a multi-million dollar ($200M) bribe to accept Uighur GTMO detainees. Mr. Beck insists its only relocation and housing costs and so forth of under $100K each.
No matter what it is, the broader point is the same: no matter what the problem, whether it's innocent men that our nation kidnapped and abused, or global warming, or drilling in the Arctic, or paying for our own government services by raising taxes, somehow we Americans are uniquely above hard choices... here, somehow, allowing a few dozen men (if even that many) our own courts had found did nothing wrong admitted into the sacred and Holy Fatherland Homeland would have given too many members of Congress the vapors... best find "somewhere else"...
The time frame on this bullsh*t American belief in magic is running out: our military can no longer defeat third world irregulars, our economy can't employ our people (let alone give them healthcare or a decent wage-- well it could but won't for ideological reasons), and soon, we will likely have some problems feeding our people... but as long as we can talk about "Idol" and "Dancing with the Stars" and Susan Boyle, et al ... we think we can continue down this road forever... well, seeing as we're going to...
Baby steps to get out of this given our infantilized system may be necessary... probably not sufficient given time-frame. Reality bites, my fellow Americans... many of us are finding out. Happy Fathers Day and happy summer solstice. This has been... Lolla-Palau-za.
June 19, 2009, To Hizbollah in a Handbasket
The most exciting political development in a number of years (other than some guy named Obama, of course) is the inconceivable-ten-days-ago massive popular uprising in Iran, for which I can only tell you to keep checking in with Al Giordano, who gives us clear-headed analysis like this, or this, or this, that is just second to none. In a world of information overload, I'd just go right to these and cut through the media morass, as the corporate media continues to cower before the mighty power of the Iranian regime... even as the Iranian people courageously defy it!
Who knows what tomorrow, or the next day will bring... as the faltering Khamanei regime and its Ahmadinedjad front man plan their next reactive move... will they issue more edicts... or send in more goons... or crack more heads? And what will we see from the Iranian people (who our corporate media's back-story has us believe are little more than 70 million Ahmadinedjad clones, but, in reality, are freedom loving human beings, evidently more willing to put their money where their mouth is than many if not most Americans). Well, none of us do, I suppose... but Al will likely have it first, well ahead of our not-ready-for-prime-time regular media.
Stay tuned... we could be in for a bumpy night...
June 15, 2009, Profiles in political courage
Dr. Ewart Brown, premier of the local government in Bermuda, has shown immense courage (more courage than the entire United States, btw) in accepting the entry of four completely innocent and found so by our courts former Uighur GTMO detainees... and as a result, the wahoo reactionary political elements in Bermuda are calling for a no-confidence vote (h/t Candace).
Brown, and the Bermuda government, not to be confused with Gordon Brown and the UK government, who we would have thought had tacitly approved this in the first place but whose immediate reaction was to harumph about it, deserve our support and praise. Indeed, unless more countries step up, including this one, to accept men who our courts have found innocent, the President will simply not be able to close GTMO, in a year's time, or ever, and our nation's moral standing will forever be besmirched because of our own rather stupid and ill-informed intransigence (and Harry Reid must be removed as "leader"). Candace lets us know the obvious consequences: what other government would want to do the right thing?
As we look on at the demands for human rights in Iran... a quick look in the mirror is in order, as to what we can do here, and now.
June 14, 2009, If Iran the Circus
What in God's name is going in Iran? Keep your eyes on the prize, and, as is almost always the case where political legardemain appears to be going on in front of us, consult Al Giordano's The Field, who tells us not to be so concerned about whether or not there was "electoral fraud" in Iran [hint: what matters is whether Iranians writ large feel the whole, rigged game of their system is entirely illegitimate, and what they will do about it... which right now, appears to be massive protests amidst government crackdowns, lockdowns and arrests] and Al also tells us why the world is on the edge of its seat [hint: it's not the results themselves, which were probably a foregone conclusion, but again, what the Iranians will do about those results, which as noted above, looks pretty explosive.]
In short-- discard the conventional wisdom. Iranians know bloody well it matters little if at all which figurehead is allowed the title of "president"... the mullahs and ayatollahs control the game in a largely repressive, theocratic society, with interersting overlaid elements of apparent freedom and democracy peering through from a generally not very pretty overall picture. But the Iranian people, satellite dishes, cel-phones, internet connections and all, have aspirations of their own, and the mullahs will have to give in on some on them from time totime (such as permitting an actual win by the man the people actually voted for), and screwing them on this symbolic thing may have just unleashed a torrent of discontent that the religious thought police won't be able to suppress. Perhaps.
Or perhaps, this sudden "spontaneous" outpouring of "democracy" may be just what the mullahs need to keep a possible Israeli (or even Israeli-American) military strike at Iran's nuclear facilities from taking place anytime soon. Who knows?
Just remember; most American journalists and government officials are as likely to be wrong on what's going on in Iran now as they have always been... understanding the place (as with Afghanistan, or Iraq, or for that matter, most of the world, or even ourselves) requires painstaking study, discussions with people in the know (i.e. from there), and overarching wisdom-- none of which is consistent with our five second sound-bite attention spans. So... educate yourselves from as many sources as possible... and take everything with a grain or two of salt, realizing things might be as they seem, or they might not be...
Update [14 June 2009, 19 00 EDT]: As if on cue, it seems, Israel's hard-ass PM, Bibi Netanyahu gave a major speech in which he endorsed the idea of a rump, demilitarized Palestinian state, with no control of its airspace and its capital somewhere that isn't Jerusalem. As, other than Bibi and some super-nationalist parties, most Israeli politicians have already endorsed the concept of Palestinian statehood on more generous terms than this supposedly "new" development, this isn't particularly Earth shattering. Coming as it does, however, right after the Iranian election and turbulent aftermath, it is most interesting... most interesting...
Without even leaving the CNN front-page for my links, right now, we get this lead story, that Supreme Iranian leader Ayatollah Ali Khamanei "endorses the election results," which makes sense, since, of course, he almost certainly supervised the rigging of the elections to get these results in the first place. And then, back to Israel, a poll reveals that a slight majority (about 52% in favor, 35% opposed, the rest asleep) of Israelis favor Israel's bombing Iran's nuclear facilities. And so...
Action... reaction... more reaction... and more still... Someone seems to know what they are doing... I hope "our side" does as well...
June 13, 2009, Managed chaos
We'll start with our friend Barb and this artice discussing the "principled" (as in "principal plus interest") opposition of the American Medical Association to the "public option" being discussed with regard to healh care overhaul. Barb notes that the AMA, which acts not in the overall interest of physicians (most physicians, for example, are no longer even members), but of the economic interests of some stereotype of physicians; like the Chamber of Commerce, AMA is a classic special interest. Barb notes that the AMA has been opposing anything approaching "socialized medicine" since the Truman Administration (though I wrote to her to note that, in fact, AMA was right there making sure the New Deal didn't include health care reform... so its opposition to bringing affordable health care to the masses is even longer standing).
Significance? I did hear a most interesting piece on National Palestine Radio ("NPR") and its "Weekend Edition" program as host Scott Simon asked a representative of the association of health insurers whether she (and her association) opposed the public option... after a few minutes' double-talk about balancing quality and cost, when Simon asked point blank "are you for or against the public option?" responded against... because the lower costs will eventually lead to single-payer, without any discussion of downside other than that her own incarnations of evil member health insurers would lose business (or better-- for the rest of us-- go out of business).
So... given the classic clash of "care for all" at lower cost vs. the parochial special interests of an "industry" devoted to profiting by denying you and I medical care that by rights should really go the way of commercial whaling... guess which direction Harry Reid, Max Baucus and the feckless Senate Democrats are interested in "compromising" ... as if you even had to guess how a party who decided its principal interest (!) was selling out to get corporate campaign money because the Republicans had a natural advantage in reaching out to big business... would lean.
In short, this once-in-a-generation opportunity to try to reform health care once and for all so that we evolve beyond a system that combines the highest health care costs in the world with one of the worst scopes of delivery of service and obscene waste, fraud and abuse rate (which would include the entire cost of managed care) and we won't even metion overall health measures like infant mortality or life-spans... by replacing it with a simple expansion of the Medicare system to include everyone, which even the health insurance industry doesn't seem to dispute would lower costs-- and dramatically so-- won't happen because a few Democratic prostitutes Senators won't wean themselves from managed care and insurance lobbyists' campaign contributions and bribes gifts and emoluments.
While most things involving government and public policy are "complicated," this one isn't. While regular readers know my differences with the Obama Administration on areas where it insists on continuity with the Bush Administration, on this one, it appears the Administration actually means real reform in health care, based on the dread "single payer" model... and as in bygone times, it appears the President's own party may be the main obstacle, because their personal interest in campaign fundraising will always, everytime, outweigh any public policy advantage to their constituency, even on a so-called signature issue like health care.
And so are chaotic system combining the worst aspects of everything... will likely go on, damnitall... Deep sigh. This has been.... managed chaos.
June 12, 2009, Bermuda [edition of the] Onion
Amidst talk that the [chicken-sh*t] Obama Administration [catering to a chicken sh*t morally bankrupt nation, that kidnaps men, tortures them, holds them for years in a dungeon, and then, when its government has long given up trying to prove these men did anything wrong or are any kind of a threat, instead resorts to crass demonization, fights off, ignores and then appeals a court order granting a habeas corpus writ directing their supervised release within the United States] would transfer the GTMO Chinese national Uighurs to the reliable American vassal independent Pacific island nation of Palau, as Andy tells is in Huffpost, is instead transferring four of them to Bermuda. Much harumphing from Britain of course, who insists that its dependency in Bermuda "didn't consult" about this, which will doubtless piss China off, yada yada yada. As Andy notes, that's about deniability- credible or otherwise.
Well, good luck to the released prisoners, I guess (bringing the total to 6 in the Obama era). If we won't do the right thing, at least someone will, I guess.
Oh... did I mention that the Supreme Court is meeting June 25th to consider taking that little appeal I mentioned above? Probably all just a coincidence...
Update: The trickle continues, as Andy reports that child prisoner Mohammad el-Gharani has been returned to Chad, bringing the GTMO score under Obama to 7 released, 1 dead, 233 not out.
June 7, 2009, All the euphemisms fit to print
Glenn Greenwald continues to kick ass as he brings truth to power. This Salon piece documenting "liberal" news oulets, the N.Y. Times and National Palestine Radio ("NPR"), and their specific refusal to call torture torture, no matter how obvious that what they are describing ("intensive interrogation" [that occasionally results in death]) is torture, just hits it out of the park. The specific context is peculiarly alarming: an Obama Administration proposal to try to streamline guilty pleas leading to the death penalty. Just... cause for... concern?
Look folks... I don't like Khalid Sheik Mohammad any more than you do (and unlike many of you, I was across the street from the WTC on you-know-when, and I actually know people who died)... but if the simple act of demonizing someone long enough leads to the ability to execute them without due process of law... that is not in any sense consistent with a free, democratic republic governed by the rule of law. There's no room for discussion on that point. And I don't care that the President who is proposing it is a college classmate of mine whose campaign I supported and worked for.
As this discussion also involves the Obama Administration's efforts to whitewash and cover up (and indeed ratify and thereby become complicit in them) many of the excesses(!) of the Bush Administration, these "liberal media" outlets also show us that they are "bipartisan".
Andy's blog (note my own comment) gives us another observation of a manifestation of the apparent death of objective, mainstream journalism, at least in some quarters.
Newspapers and broadcast media have always had an axe to grind; some outlets were better than others, to be sure, but it was understood there was a basic tension between "the Fourth Estate" and the powerful that they are covering. That tension and "covering" seems to have been replaced by fawning, and indeed, "cowering". It's both laziness, and an imperative to serve corporate interests that own the outlets. Again, not unprecedented, but it does make our jobs as informed and responsible citizens all the harder (even as the internet allows us to have news and views the world over readily available).
All I can say is to take everything with a grain of salt, and not trust any one particular source (unless, like this blog (!) they have a track record of accuracy and objectivity (!)) I suppose if they torture me enough, even I might say torture isn't torture... but that's what it would take.
June 5, 2009, Meta-truth
E.J. Dionne of WaPo tells us in a column called "Rush and Newt are Winning" what regular readers here know to be true a moral certainty, though of course, it is squarely at odds with "conventional wisdom." That is, of course, that the military-industrial-corporate-media-entertainment-complex does not suffer from left-wing bias at all. In point of fact, and as Mr. Dionne tells us in his column, the media is skewed right.
This explains why psychotically reactionary maniac outliers like Gingrich and Limbaugh are depicted as legitimate harbingers of mainstream opinion, and why President Obama, who Dionne rightly notes is actually pretty damned "centrist" and in any event is no one's lefty, is routinely depicted as the ultimate far left pinko when he is nothing of the kind (as we far left pinkos are constantly telling you!) Indeed, the whole concept of "he-said, she-said journalism," where "presenting both sides" (meaning dueling partisan press releases), rather than "the news" or, oh "the truth," now passes for "reporting," is itself a product of this right-wing media bias.
Obviously, you savvy consumers of the internets, and particularly this blog, know this already. But it's nice to see reality recognized once in a while, even if the point will either be ignored or "harumphed" away.
June 3, 2009, Whiskey Tango Foxtrot?
It seems to be something about this time of year... maybe it's just a coincidence that May or June seems to bring this sort of thing... to wit, the military is reporting the fifth "apparent suicide" (and sixth overall death) in the ignominious history of GTMO, America's own gulag, now proudly managed by the Obama Administration (via Candace).
Subject was Yemeni hunger striker, age 31, unrepresented until around February or so, and the government was doubtless giving whoever signed on to be his lawyers the runaround to the point where they never met their client... until eventually, Muhammad Ahmad Abdallah Salih, aka al Hanashi, (ISN 078?), succumbed to the effects of his long-term hunger strike, the torture associated with government efforts to break his strike, and the endless, pointless injustice that has kept him locked up for over seven years, without charge, trial, hope, or point.
Maybe he was just a poor schmuck in the wrong place, handed over for a bounty, in which case, our government is responsible for the death of a (yet another) complete innocent. Maybe he was a Taliban fighter, in which case, he was entitled to humane and lawful treatment as a prisoner of war. Maybe he was worse-- in which case he was entitled to charge, counsel, and trial, before punishment. But that's apparently "pre-9-11 thinking". Despite inheriting the situation, the Obama Administration has given no one "hope" for any particular "change" in this department, and hence, this one is charged against its record (since my college classmate took office, two detainees have left GTMO alive, and now, one has left it dead).
I suppose in the kinder, gentler Obama Administration, we won't be hearing a callous Pentagon official call this "asymmetrical warfare"... but one has to admit that there was a certain... honesty... in the Bush Administration's total demonization approach, that seems to be missing from the Obama Administration's... total demonization approach.
Just saying.
June 2, 2009, TD Blog Interview with Peter Honigsberg
Peter Jan Honigsberg is a professor of law at the University of San Francisco, where among other subjects, he teaches a course on terrorism and national security law. He is the author of numeous articles and books, including most recently, Our Nation Unhinged: The Human Consequences of the War on Terror. On June 2, 2009, I had the privilege of interviewing Professor Honigsberg by e-mail exchange.
The Talking Dog: Your book notes that you ask your students in a terrorism/national security law class where they were on 11 Sept. 2001; I happened to be across the street from the WTC; please tell us where you were.
Peter Honigsberg: I was at home in California with my wife and family. We woke up the kids, turned on the television and watched the second plane hit the tower. I called the law school and cancelled my 9:00am class. I also called my friend, who was on his way to San Francisco from the east bay, and suggested he turn around. Who knew what would happen next?
But, I would like to comment on why I ask my students to describe where they were and how they felt on 9/11. In studying the “war on terror” (a term from which President Obama has moved away), it is important to understand what we were experiencing that day and in the weeks and months that followed. Fear enveloped the nation, and unless we appreciate how pervasive that fear was, we cannot fully understand the administration’s reaction. People were afraid of another attack, and many people were willing to yield their civil liberties for national security and the safety of themselves and their families. It is in that environment that the Bush Administration overreacted. We can never condone the torture and inhumane treatment that the administration conducted in the name of our great nation. However, we must understand that Bush and Cheney did not want another attack, and they were willing to break the law, discard the rights of others, act inhumanely and do whatever else they thought necessary to “protect the nation.” And many people, including the media, deferred to the administration.
A few days after 9/11, I went to our dean at the law school and told him that we needed to offer a course on the issues that would arise from these events of 9/11. I offered to teach the course without pay -- it was that important to me. The dean was very supportive of my offer. However, he was concerned that some alumni would consider my course “unpatriotic,” and in those early days everyone supposedly needed to lock-step behind the administration. I told him that I would teach the course regardless of any resistance from alums. I analogized the course to my experience in college and law school when we had “teach-ins.” In those days, professors and others would hold all-day and all-night sessions to discuss the Vietnam War. It was an amazing experience listening to people voicing their thoughts. I wanted to replicate that experience in some way. Perhaps teaching a class would be my contribution to the next generation. I pushed ahead and began the first course on the war on terror in January 2002.
The Talking Dog: Amongst your many writing credits, including a number of children's books, legal books (including for law students' favorite shortcut, the Gilberts series), bar review books and materials, articles on Huffington Post and "Our Nation Unhinged" is a prior book on civil rights (Crossing Border Street: A Civil Rights Memoir). In that book, you describe your own well-spent youth (or young-grown-up-hood) in 1960's New Orleans, working for a civil rights organization in the Jim Crow South. The obvious question (so I'll ask it!) is what comparisons you can draw between what you see, in legal systemic terms, is going on with America's various ad hoc legal responses to the war on terror, and what you personally observed during that rather turbulent era in American legal history? I take it that it was those experiences that got you interested in GTMO and "the war on terror" area... or was it something (or someone) else?
Peter Honigsberg: Mark Denbeaux [whose son Joshua is one of your talking dog interviews] was in my class at NYU Law School. He also worked in the South and had been instrumental in releasing a report documenting that over 80% of all the people sent to Guantanamo were sold to the United States for $5000 to $20,000 by Afghanis and Pakistanis. Not long ago, he said to me that our work on post 9/11 issues is on a continuum from our participation in the civil rights movement. I agree.
As you know, I worked in Bogalusa, Louisiana, with the Deacons for Defense and Justice. The Deacons were the first modern-day black group to carry weapons and use them to defend themselves against the Klan. I worked in Louisiana two summers and two winters, while in law school. I also worked during the school year, taking a few weeks off from classes. After I completed law school, I took the NewYork Bar exam and left the next day for California. Once in California, I joined the movement against the Vietnam War and, actually, was arrested in a demonstration. Yes, there is a continuum from the civil rights movement to the anti-war movement to the movement of today for human rights in the war on terror.
However, I think there are motivations for my current work that go back even further than my participation in the civil rights movement. In fact, they go back to my early memories of stories my parents, who were Jewish refuges from Nazi Austria, told me as a child.
In one story, an Austrian woman hid my father in her home on Kristallnacht, November 9, 1938, when the Nazis wantonly destroyed Jewish homes, shops and synagogues. Concealing a Jew was a crime. When the Nazis came to her door searching for Jews, she expressed outrage. How dare they accuse, or even intimate, that she may be harboring Jews! They apologized and left, never searching her house.
Some time later, my father received a letter from the Nazis summoning him to the local train station for deportation to a concentration camp. He ignored it. He disregarded a second letter as well. A third dispatch warned him that if he did not appear the next morning, they would come for him. That same day, he and my mother received visas to America. Under United States law, an immigrant could not obtain a visa unless someone promised to support the immigrant for five years if the immigrant could not find work. The couple, who vouched for my parents by signing an affidavit of support, did not know them.
Perhaps, a large part of my motivation to work in the South and in human rights came from hearing these and other stories as a child. Certain people took considerable risks to save my parents’ lives. As a child, I was drawn to questions as to why they would do it. Although I had not recognized it when I worked in the South, I now think that my work in civil rights and human rights was largely motivated by my wanting to give thanks to those who had been there for my parents.
The Talking Dog: I'm guessing from your schooling (CCNY, alma mater of Colin Powell and TD Mom, and law school at NYU (undergrad alma mater of TD Dad, and law school alma mater of Rudy Giuliani and me) that you are a New Yorker (Bronx, perhaps?). New Yorkers, being from a cosmopolitan city of immigrants, tend to have a somewhat different world view than most Americans, at least in my perception. Can you tell me, in your experience teaching law at a Jesuit university in the Bay Area, or your legal practice, or your personal life or anything else, if you have observed any regional differences among Americans in their reactions to what you describe as the excesses of the Bush Admin. in its approach to legal policy in the so-called war on terror? [Is this reflected in book sales... i.e., are all the books being bought on the coasts?] Do you see a difference between Americans and non-Americans in their reactions to it all, and if so, what? How would you view your own perspective, if I am not mistaken, as a child of Holocaust survivors, in this overall context?
Peter Honigsberg: Actually, I am from the tip of Manhattan, near the Cloisters. But as to your question, I think people are essentially the same all over the United States and even all over the world. In the U.S., there are, of course, pockets of certain interests and certainly “birds of a feather, flock together.” However, if you reflect back to the enormity of Obama’s victory, you can see that people all over America cared and wanted to do the right thing. And people all over the world were rooting for us to return to the nation that they could once again hold in esteem.
Certainly, my being a child of Nazi survivors, as I describe in the above question, heavily influenced me. But then, other children of Holocaust survivors have not always reacted the same way as I have. Henry Kissinger, who is quite a bit older than I and also a son of Nazi survivors, grew up in my apartment building. Yet, he and I turned out quite differently. Even if our childhoods help form us, our cultures, environs, schools, friends, family and certainly our genetic composition, all contribute to who we are.
As for the Jesuit connection, I am extremely comfortable teaching at a Jesuit institution, especially in the bar area. USF’s values of education and justice are in sync with my own. Over time, I think people find their homes and where they belong. Immediately after taking the New York bar exam, I flew to California. When I arrived in the bay area, I said to myself, “this is home.” And it still is decades later.
The Talking Dog: You wrote a Huffington Post piece describing your debate with fellow Bay Area law professor John Yoo, bete noire of progressives and human rights advocates everywhere, widely credited with writing key "torture memos" while an official with the Ashcroft Justice Department. (Professor Yoo was perfectly polite in declining a request to be interviewed for this blog.) Your article, aside from drawing the requisite Hannah Arendt "banality of evil" comparisons, notes that at a non-public level, Yoo seemed somewhat less charming, and more in need to demonstrate self-aggrandizement and hubris than one would have thought for someone so confident of his world-view. Professor Yoo, who is married to the daughter of broadcast journalist Peter Arnett, may be paradigmatic of something as or more troubling than even the banality of his own personal evil, in my view. I have no doubt of his personal intellectual firepower, and I'll even accept the sincerity of his views. But is there some sort of broader disconnect out there-- in other words, Yoo is as much symptom as disease-- which perhaps we also see in investment bankers who merrily engage in fraudulent transactions that have devastated our financial system, or "scientists" willing to deny everything from global warming to the dangers of chemicals to the Earth being round, or "journalists" willing to guffaw along with Authority while George W. Bush mocks thousands of dead Americans looking under his chair "for missing WMDs"... the John Yoos of the world are simply creatures of a grander American "Yuppie Nuremberg Defense" of "I was only paying the mortgage" or "I needed to advance my career"? In other words-- maybe it hurts to acknowledge this, but the Bush Administration wasn't particularly "out of step" with a country (or large parts of it) that had pretty much already moved to an "ends justifying the means" mindset and ethic (and those ends apparently really were "prosperity with a purpose... the purpose being the most prosperity for the fewest people")... not to mention a rather clear "fear of the other". Does any of this make any sense, and can you comment on it?
Peter Honigsberg: I think you are describing something that we have all experienced over the years. It does seem that corporate greed and perhaps a concomitant decline in values have changed our culture since the idealistic sixties. The culture of greed has infected the attitudes of many people, perhaps making them more skeptical, even cynical, and less responsive to issues of ethics and morality. I found it interesting that when President Obama gave his speech on Guantanamo on May 21, he spoke the word “values” frequently. A lot has been written about the decline in values and ethics in the last 30 years, and I doubt I have much to add. However, it does strike me that something turned in the 80’s when greed began to take over the culture.
During the Bush years it seemed that the most powerful media players did not have the courage to stand up to the administration and question what they were hearing. Perhaps, the media feared that they would be denied access to the inner circle of the white house if they challenged the administration. However, the loss of integrity was not limited to the media.
I had a conversation with a lawyer back in 2005 about John Yoo’s torture memo. The lawyer said that what John Yoo did in countenancing torture for the administration was not all that different from what the lawyer had seen every day in his firm over the past 24 years of his career. For years, perhaps decades, lawyers have been creating documents as CYAs for their clients and their supervisors, just like Yoo did for the administration. And then there is the account of former Hewlett Packard chairperson Patricia Dunn who was charged with four felonies for an illegal spy probe into boardroom press leaks. She claimed that she had relied on counsel for advice before making her decisions. The prosecution ultimately dropped the charges against her.
The Talking Dog: Please summarize for us a bit your UCLA law review article on the "enemy combatant" definition (i.e., it's nowhere found in international law, it's made up as the Bush Admin. goes along), and discuss in the context of other definitions, one being from the DOD itself: Any person in an armed conflict who could be properly detained under the laws and customs of war. Also called EC. (JP 1-02 Department of Defense Dictionary of Military and Associated Terms). Near and dear to me, and to my friend Candace Gorman and her client al-Ghizzawi, is a decision on the subject by US Dist. Ct. Judge John Bates which in my view, and Candace's, is pretty pragmatic. Judge Bates refused to go to the extreme "anyone even remotely supporting anything we say is terrorism" justification used to hold detainees so far. Can you comment on the trends in the law viz how the habeas judges and appellate courts are ruling on the "EC" definition, and what you think this bodes for the future of an executive's ability to make up a term (such as "enemy combatant") to back up whatever abuse it has in mind?
Peter Honigsberg: I will try to keep this issue of “enemy combatant” simple. Readers can read the article or the section in my book that describes the term enemy combatant for more detail. The term “enemy combatant” had no established meaning when the administration first introduced it in the spring of 2002. It was nothing more than a generic term. The Geneva Conventions (GC), of which we are a party, recognizes only two types of combatants, lawful and unlawful. That is the universe of combatants. Lawful combatants are also known as Prisoners of War. Any member of a nation’s armed forces who is captured would be a lawful combatant. An example of an unlawful combatant would be a spy or a saboteur. Lawful combatants have more protections than unlawful combatants, but both types of combatants must be treated humanely.
Consequently, by labeling the captured men as neither “lawful” nor “unlawful” combatants, but rather as “enemy combatants,” the administration was attempting to circumvent the Geneva Conventions. The administration officials believed that if the captives were not covered by the law, then anything done to them would not violate the law. This is an amazingly cynical policy and, ultimately, did not work. The Supreme Court ruled that the men held in Guantanamo were protected by the GC, and had the right to due process and the rule of law.
What always amazed me was why the administration resorted to using the fictitious term, enemy combatant, when it could have held the men lawfully under the GC. Under the conventions, combatants can be held until the end of the war. Obviously, there were questions as to when the war on terror would end. But in the early days, that concern was not a prevailing issue. The administration could have held the captives lawfully and treated them humanely, and the world would have been completely accepting.
Since those early days, the term enemy combatant has gone through any number of different definitions and permutations. It had one definition in the early Supreme Court case of Hamdi v. Rumsfeld, another definition was used at the administrative hearings in Guantanamo, and many other definitions were created, sometimes monthly or even weekly, by the Department of Defense (DOD). I used to ask students to check the DOD website everyday, since the definition changed so frequently, and arbitrarily. In 2006, Congress passed the Military Commissions Act which, finally, defined the term statutorily. However, even that did not settle the matter, since the definition was inconsistent with the GC.
Recently, a few federal judges holding habeas due process hearings mandated by the Supreme Court in the 2008 case of Boumediene v. Bush, are redefining the term enemy combatant in deciding whether the administration can continue to hold a detainee. Since the judges are not in total agreement as to the meaning of the term, the definition continues to evolve, and will likely be decided by a higher court, perhaps even the Supreme Court.
What this means for the future is troublesome. One of the real problems with the introduction of the term enemy combatant is that the media accepted the term without questioning its legitimacy. If we engage in another war in the future and an administration again creates a legal fiction that the media accepts without inquiry, we could repeat the same type of situation. It is up not only to the lawyers, but the media and the public to take note of what the government is doing, and challenge actions that are questionable. The public and the media cannot blindly and passively bend over and submit to government actions in time of war.
The Talking Dog: Like me, you have communicated with many players on these issues (often the same players!), and among those you have communicated with but I have not are John Walker Lindh's father Frank Lindh and the former occupant of the office next door to you, Carlos Castresana Fernandez, former Spanish prosecutor credited with the first "universal jurisdiction" assertion, over Argentine "dirty war" officials. I think we both agree on the imperative of getting relevant players to document their recollections of these issues while it is still "fresh" (albeit still "raw"). Has the "testimony" of anyone in particular-- or to be less putting you on the spot-- any type in particular (lawyers, former prisoners, military officers, bureaucrats, etc.), struck you as particularly compelling in telling this story, and why?
Peter Honigsberg: As you know, I have been following and researching issues regarding the war on terror since it first began in fall 2001. The more I read, the more I was shocked by the stories. Every story unnerved me. That is why I added to the title of my book, Our Nation Unhinged, the subtitle, the Human Consequences of the War on Terror. I felt it was critical that the stories of the human consequences of the war be told. There have been many other books written on the war on terror, but not that many detailing what had really happened to the men we held. Not only are the individuals you mention fascinating people, but everyone’s story, whether a family member, lawyer, human rights advocate or detainee is compelling.
There is the story of American citizen Jose Padilla, locked up in a cell and isolated from everyone, including his family and lawyers, for 2 ˝ years, without charges and without any hearing. Ultimately, he went crazy, as anyone who is isolated and denied all sensory stimulation for that period of time would. He was also physically abused. No matter how bad a person he may have been, and there is a question as to whether he really was all that much of a danger, we still must treat all prisoners, citizens and non-citizens humanely.
Actually, we have read so much recently about physical torture but, to me, the mental and emotional torture that Padilla suffered is worse. We are human beings, social creatures. To isolate someone from all human contact for weeks, months and even years strikes me as the most vicious form of torture.
You mention, Candace Gorman. She is an amazing person. Her energy, passion and dedication to her clients are remarkable. But not only is her story amazing, but the stories she tells of her clients are heartbreaking. One of her clients in Guantanamo, Abdul Al-Ghizzawi, has hepatitis B and tuberculosis, but the military would not provide him any medical care, no matter how often and how loud Candace demanded it. Al-Ghizzawi was losing his sight and was so weak that he often had to cancel meetings with his lawyer. The last scene that I write about Al-Ghizzawi in the book is where he is washing his clothes in the toilet.
And then there is the story of a Canadian citizen, Omar Khadr. He was only 15 years old when he was captured in Afghanistan, taken to Guantanamo and imprisoned with adult men. He is one of dozens of juveniles who have been held in Guantanamo, in violation of international law.
There is John Walker Lindh, who is known as the “American Taliban,” an American citizen who was tortured for 54 days before his parents were able to convince the administration to allow him to see a lawyer. Frank Lindh, the father, is an amazing man. He has spoken at my school for the past four years and travels around the country passionately telling his son’s story. He is a mesmerizing speaker. I will continue to invite him to speak at the University of San Francisco until his son is released.
There is a group of people who have greatly inspired me as I was writing Our Nation Unhinged. They were the lawyers who stood up on behalf of the rule of law and due process at the very beginning, immediately after 9/11. I will discuss my admiration for them in my answer to your final question.
The Talking Dog: Following up on that question, in your comprehensive survey of what-is-wrong-with-this-picture, in which you discuss "manipulating the law" (making up terms like enemy combatant and enhanced interrogation and unitary executive), "Lawless detentions in America" (Hamdi, Padilla, al Marri and immigrant preventive detention), "Lawless Detentions in Guantanamo", "Foreign Prisons and CIA Black Sites" and "Detentions in America with due process" (Lindh, Reid, Moussoaui and the Lackawanna Six) as well as your recounting of your own "GTMO vacation"... which of those items do you find the most compelling (perhaps in terms of trouble-spots for us... and I'll disclose that for me it's ALWAYS "lawless detentions in America"-- as bad as everything else is, the others at least have some broader context in the ugly history of war)?
Peter Honigsberg: I can certainly see why you find detention in America the most alarming To think that Jose Padilla, an American citizen, could be held in such horrific isolation for so long undermines everything that this nation is about and has strived to be since independence. One could argue that people captured in a war on a foreign battlefield have fewer rights. But, Padilla was seized in Chicago and is an American citizen. There was no excuse for holding him this way. At minimum, he was entitled to an immediate hearing before an independent judge to determine whether he could be held and, if so, under what conditions. Another American citizen, Yaser Hamdi, was held in the same naval brig in Charleston, South Carolina, as Padilla. And an American legal resident, Ali al Marri, was held under the same isolating and numbing conditions as Padilla in the naval brig.
America acted unlawfully and inhumanely in treating the men it captured. We believe in due process, the rule of law and human rights. And we violated these principles in the most fundamental way with all our captives, whether we held them in America, Guantanamo, or overseas. As I said earlier, we did not have to respond inhumanely to secure the safety of our nation.
The Talking Dog: Tell me about your visit to GTMO... and, as creepy as you described the actual "being there" part [including the periodically Kafkaesque/Orwellian "hints" that you weren't exactly "welcome"] can you give a broader assessment of the "gestalt" of the experience, applying to go, going, looking around, talking to your military minders and others... and leaving? I'm going to make a hyperbolic analogy (surprise, surprise!) and suggest that GTMO-- a clean, orderly military-run police state with "the other" safely behind barbed wire and egregiously mistreated-- is actually something that, while it may creep the hell out of you, me or Candace, is something that a great many Americans wouldn't be all that uncomfortable with, and indeed, this has been the problem with the whole issue thus far: it's not nearly as much of an outlier for many Americans (who already have the highest incarceration rate in the world as it is). Any thoughts on that?
Peter Honigsberg: Guantanamo may seem outwardly as just another military base. But, the reason why so many people who go there describe the place as Kafkaesque, or as an alien planet says something more. I mention in the book how a photographer, with whom I shared a condo, reacted while we were there. At one point, he said to me that even if he returned 100 times and took thousands of photographs, he could still not capture the essence of Guantanamo.
Guantanamo was not just another army base with its McDonald’s and KFC. This may sound odd, but the evil that penetrated the base permeated everything, day and night. You could not escape it. I slept fitfully each night, having feverish dreams of the detention camps, the detainees I saw in wire cages, and the many soldiers and officers who told me that they were just “doing their jobs.” And yet you could not really capture those feelings in words or in pictures. I have yet to see anyone describe the profound and unspeakable effects that the naval base has on people who have been there. But I can say that although I doubt the military would ever permit me to return to Guantanamo, there is no way I would. Once was enough.
The Talking Dog: Your promotional website for the book is Cuban iguana dot net (presumably a reference to Tom Wilner's quip in the al-Odah certiorari petition-- as relayed to me by Moazzam Begg, for the first time, that the Cuban iguana has more legal rights than do some human beings at Guantanamo Bay, Cuba). You have described certain updates since the election of my college classmate Barack Obama to the White House on the site, as well as other features. Let's get right to it with respect to the Obama Administration: as a law professor, I'm going to ask you to give the new Administration a letter grade so far, and you can discuss overall, specific areas, atmospherics, or anything you like, in reaching that grade. I'd also like a forced prediction as to where we will be in January of 2010 (GTMO closed, GTMO moved, most of Bush "war on terror" apparatus dismantled, none of the above...).
Peter Honigsberg: The Cuban iguana story you refer to is actually told on the introductory page of my book. For readers who are not familiar with it, I would like to add it here. It provides a powerful image of what our justice system had become in only two years from September 2001.
In the fall of 2003, attorney Tom Wilner needed to persuade the justices of the Supreme Court that it was in their interest to take the case of a dozen Kuwaiti detainees being held in isolation in Guantanamo Bay, Cuba, without charges, without a hearing and without access to a lawyer. Wilner used three arguments in his elegant petition to the court. He argued that, under the Constitution, the courts have a critical role in striking a balance between the president’s need to protect our nation’s security and the people’s need to protect the in fundamental right to a fair hearing with a lawyer present, before a neutral decisionmaker. Wilner further argued that the administration’s mistreatment of the detainees and the denial of their rights under law had become an international embarrassment. Here was the opportunity for the Supreme Court to make it right.
In his third argument, Wilner referred to the example of the Cuban iguana. When the Cuban iguana crosses the Cuban border into Guantanamo, it is protected by American law, under the Endangered Species Act. However, the human beings held prisoner at Guantanamo were not protected under American law. Wilner concluded that if the Supreme Court does not review his clients’ cases, the Cuban iguana would have greater safeguards than human beings at Guantanamo.
The Supreme Court agreed to hear his case.
As to President Obama’s performance, here at the end of May, 2009, I am going to give him the benefit of the doubt. Given the “mess” (his word) that he inherited from the Bush Administration, he is doing the best he can. He is trying to undo what he can and bring us back to the world of due process, the rule of law and a true adherence to human rights. Sure, he has made decisions with which I would disagree, such as his not releasing the additional Abu Ghraib photos and his support of the Bush Administration’s approach to the state secrets doctrine. He has also disappointed me in his support of a case on extraordinary rendition.
However, he did release a number of additional torture memos, some of which are horrifically brutal in their language. It is very disturbing to know that government lawyers wrote them. Obama must have known that by releasing the memos, he would be telling the public that the previous administration had violated everything that we, as Americans, believe in.
A couple of days after he took office, President Obama promised to close Guantanamo in a year. Apparently, he is discovering that it is not as easy as it first seemed. He needs to find other countries who are willing to take the released detainees -- countries that will not torture -- and he needs to set up court systems to prosecute those who are charged with war crimes.
He is also considering something called “prolonged detention” to hold people he cannot prosecute or release. I am very concerned that he could be sliding down a path that again will move us away from the rule of law. Even though he says that he will bring in Congressional and judicial oversight in any prolonged detention situation, that oversight does not substitute for the absence of due process. We, as Americans, do not hold people for prolonged periods of time without rule of law justification and a hearing. There are also issues in bringing war crime charges in a military commission, since military commissions violated due process when created by the Bush administration. It is not certain that Obama’s military commissions, although perhaps slightly better, will still provide the protections we expect in a fair hearing. Finally, given all the complexities, I doubt he will be able to close Guantanamo by late January 2010.
Creating policies is a much more complicated procedure once you are inside the White House. I believe Obama wants to do the right thing, every time. But, there are immense pressures from the military, the state department and other political influences that he was probably not as cognizant of when he ran for office. I can only hope that he continues to do his best and that he always remind himself to do the right thing. I will reserve the grade until the first year is through. Ask me in January 2010 for his grade.
The Talking Dog: Following up on two items on your web-site are two projects identified, one as trying to work on "truth and reconciliation commissions" (I'm guessing Alermindo Ojeda has something to do with that), and on the subject of Almerindo and his GTMO Testimonials Project, I understand you are also working on a similar project to videotape statements and interviews of as many former GTMO detainees as possible. How are these projects going?
Peter Honigsberg: Our project is called, “Witness to Guantanamo.” The overarching goal of this project is to collect, document and archive audio and videotape testimony from up to 500 former detainees of the Guantanamo Bay Detention Center. Videotaping witness testimony will play a critical role in documenting former detainees' first-person accounts of their time at Guantanamo.
We are looking to the "Shoah" oral history project -- in which Holocaust survivors were interviewed and videotaped to ensure that the history of the Holocaust was accurately documented -- as our model for archiving our video footage as insurance against denials of torture and systematic abuse by U.S. authorities in Guantanamo. The videotapes will document human rights and rule of law violations.
Professor Almerindo Ojeda, who directs the Guantanamo Testimonials Project at the University of California, Davis, is on our Advisory Board, and may assist us in the interviewing process. However, we are not otherwise connected with his project, which is very different. Professor Ojeda is collecting every piece of information he can, mostly written from news media accounts and from court documents on Guantanamo. We are focusing on taping full interviews of the detainees and archiving them. No one else has done this. U.C. Berkeley did a very interesting study on the lives of 62 detainees after they were released, but they did not focus on the systematic abuse at Guantanamo. In addition, their study did not involve videotaping, and to the extent that they audiotaped any detainees, the professors were required to destroy all tapes at the end of the study. The McClatchy news company interviewed 67 detainees, of which only ten were videotaped. Their videotapes were very short, often less than a few minutes.
We are working with Laura Poitras, who was nominated for an Academy Award for Best Documentary for her film, My Country, My Country,, on Iraq in 2004. She is our Artistic Director, and will be in charge of the filming of the interviews. We are hoping to begin interviewing this summer with an eye on Bosnia, Albania, France and Algeria and possibly other countries. We have raised over $100,000 from a couple of foundations, and are currently seeking funding from other foundations and funding sources.
The Talking Dog: You and I (and Candace) are part of "the new independent media," which has been a major source of relevant information associated with these issues, in my view. The professional press, particularly Carol Rosenberg, William Glaberson, Charlie Savage and others in the print media have done yeoman's work, but really, not too many more reporters have taken these issues up, and non-NPR broadcasters have been, in my view, abysmal in their coverage of these issues. Can you comment on media coverage-- independent, traditional journalism, international, or whatever, and how you might improve upon coverage, or what you believe is necessary to secure appropriate coverage of these issues? How has your own work been covered, in your view?
Peter Honigsberg: As I had mentioned earlier, other than a few reporters like those you name, the public media did little in terms of questioning the administration. They bought into the administration’s assertions and accounts without any serious analysis or inquiry. Apparently, unless they played ball with the administration, they would not have had access. But, what good is access when the information fed to you is false? Where is the integrity? Business decisions trumped integrity. The media’s adoption of the term “enemy combatant” and the euphemistic term “harsh interrogations,” as well as the media’s acceptance of the administration’s statement that Iraq had weapons of mass destruction, resulted in disastrous policies that we are still agonizing over today.
There were media outliers that challenged the conventional news issues by the major press organizations. But they were not heard by most of the people in America who only listened to and watched network newscasts. The unfortunate part of this is that it looks like media coverage and serious analysis are continuing to decline. Fewer and fewer media outlets remain, and as they shrink the resources for investigative reporting decline with them. The Internet has become the source of news for many of the young people in this nation, while newspapers flounder. Candace Gorman’s Blog is fabulous in identifying issues that the media overlooks. The Huffington Post and other bloggers raise critical issues and provide insightful and thoughtful commentary. But, we also need in-depth reporting, and bloggers do not have the necessary resources. Identifying the issue is only the start. Who will go deeper? And who can afford, and is willing, to pay reporters to seriously investigate a story over the long term?
The Talking Dog: Is there anything else I should have asked you but didn't, or anything else that the public needs to know about these issues?
Peter Honigsberg: There are two other subjects I would like to briefly cover. The first is the courageous lawyers who stood up on behalf of the men who were first captured in those very early days after 9/11. These lawyers were the recipients of hate mail and even death threats. They were attacked as being unpatriotic. But without the lawyers in those early days, things would have been even worse. Dean Erwin Chemerinsky, who wrote the Foreword to my book, was the first attorney in the nation to file a lawsuit on behalf of the detainees in Guantanamo, demanding a due process hearing. He and another lawyer, Steve Yagman, filed the lawsuit only nine days after the detainees were first brought to the prison. Chemerinsky received 200 pieces of hate mail and death threats over the weekend that he filed the case.
There are a handful of other attorneys, including Donna Newman, who defended Jose Padilla; Tom Wilner, mentioned above; Yaser Hamdi’s attorney Frank Dunham (who has passed); Joseph Margulies; Clive Stafford Smith; and the great team of lawyers at the Center for Constitutional Rights (CCR), led by Michael Ratner. I am sure I missed a few but, unfortunately, there were only a few in those early days. Most lawyers did not become involved until the Rasul v Bush Supreme Court decision in 2004. After that case -- when the court held that the detainees had habeas rights -- lawyers came out to help. It was important that they joined the cause then. We needed the lawyers to represent all the detainees. But, it would have been even better if they had been there in those early, very lonely, days.
The other subject is this: You -- since you have not revealed your name to the public, I will call you Talking Dog -- are doing a very worthwhile service for history. Ever since you began, I have followed your work and read your interviews. Even before you asked to interview me, I had felt that someone should publish your work when it is completed. Future historians and others would benefit from your public record of some of the people who were involved in challenging the policies of the Bush administration and its violations of the rule of law and human rights. Thank you for offering to interview me and, more importantly, thank you for doing this work.
The Talking Dog: I thank Professor Hongsberg for that fascinating interview, and commend all interested readers to check out "Our Nation Unhinged".
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutor Darrel Vandeveld, with attorneys Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with Joanne Mariner of Human Rights Watch, and with Almerindo Ojeda of the Guantanamo Testimonials Project, to be of interest.