The Talking Dog

May 31, 2007, Trial by Firing

The mirth and merriment coming to us from the Super-Max Pleasure Palace we have created to satisfy our paranoia (and throw a few bucks to Kellog, Brown & Root) down Guantanamo-way continues... with this story that Canadian detainee Omar Khadr has decided to fire his American lawyers. While the story mentions Lt. Col. Colby Vokey (USMC) by name, we suspect the firing also includes Rick Wilson, who we interviewed here. There may be an issue that Khadr wants a Canadian lawyer... though who really knows?

Our friend Candace also brings our attention to this piece (also in the Globe and Mail), observing the somewhat unique Alice in Wonderland vagaries of life at GTMO, especially for those lucky enough to be charged by the military commissions:

Mr. [John] Bellinger [State Department Legal Adviser-- what the agency's general counsel is called] acknowledged the odd reality that Mr. Khadr may face a fixed term in prison if convicted and an in-definite, perhaps longer, incarceration if acquitted.

"Acquittal after trial raises a certain expectation [of release]," he
said at a briefing. For instance, high-ranking Nazis acquitted of war
crimes charges walked free. But the Nuremburg Tribunal was held after
the Second World War ended. The Guantanamo military commissions are
being conducted while the war on international terrorism continues,
hence Mr. Bellinger's confirmation that even those acquitted might face
continued detention for the duration of the open-ended war.
Mr. Bellinger also confirmed that no talks are under way with the
Harper government about bringing Mr. Khadr, a Canadian citizen, home to
serve any sentence. "We've not had negotiations or conversations with
the Canadian government about him serving time, if convicted, in

Yesterday, Mr. Bellinger seemed to signal that a plea bargain of the
kind that sent Australian David Hicks home might be arranged for Mr.
Khadr. Mr. Hicks is now home, serving out a few months in an Australian
jail and is expected to be free within a year.

While Khadr's case may not be the kind of political albatross to the Harper government in Canada the way that Hicks's case was for the Howard government in Australia, there are enough aspects of Khadr's case that, if they were more widely known, would make it a political albatross to the American government. For one, the United States (alone with only Somalia in this regard) has refused to ratify the International Convention on the Rights of the Child... which is why we can "legally" charge someone we arrested when he was only fifteen years old with capital murder as an adult. Oh-- that "murder" was committed after American forces bombed the house Khadr was staying in, and then sent in forces that Khadr may have believed were there to execute any survivors (Khadr evidently faked being dead, and then threw a grenade that killed an American soldier and wounded others). Traditionally, that was a combat situation... until now, of course. And while at GTMO, Omar was used as a kind of "human mop" at times, was held for years in solitary confinement with no human contact save his interrogators... you know: the usual.

Just some of the charming details that can best be handled by Omar pleading to something conveniently nebulous in exchange for a nice, determinate sentence, preferably to be served in his home country, with, say, no public statements for the next, oh, 600 days or so...

Just saying...

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May 31, 2007, A Casualty of Asymmetrical Warfare

So far, no flippant responses from the Defense or Justice Departments to the latest news that yet another GTMO detainee, this time a Saudi national, has managed to kill himself at our gulag beach resort at Guantanamo Bay, Cuba. (Around this time last year, when three detainees killed themselves, GTMO commanding officer Rear Adm. Harris insisted that this was some kind of gesture of "asymmetrical warfare".) While we do get the usual explanation of a detainee "found not responsive", we get no details such as the name, or whether the detainee was one of those scheduled for release (because they're all "the worst of the worst", of course), or in this case, the manner of suicide.

The WaPo article relies on insanely under-stated official estimates of "around 40 suicide attempts by 25 detainees". We know, for example, from our interview with Joshua Colangelo-Bryan that his own client Juma Al-Dossari may have exceeded that number all by himself, and that suicide attempts were rampant. What has happened, of course, is that the military has simply stopped counting suicide attempts, and calling them other things. Well, three of the Orwellianisms managed to work last year, and a fourth this year. That's around 1% of the current detainee population. Given that, unlike the usual super-max prison, where those held have been tried and convicted of something and have a determinate sentence (even if its a long one, or a life sentence), the GTMO detainees have simply been determined guilty by executive fiat, and may face life, or may be released tomorrow, again, by executive fiat and whim. And unlike the usual super-max, they are subject to the kind of officially sanctioned abuse and torture, which, stateside, some lawyer and judge might find offends the Eighth Amendment.

No matter. A "cultural advisor" is on hand to make sure that the prisoner's body is treated with the kind of respect that the prisoner was denied while he was alive (doubtless using protocols written by former chaplain Capt. James Yee, interviewed here.)

And so it goes. Another day at the office, if the office is Joint Task Force Guantanamo. This ongoing stain on our nation's integrity continues. Our friends at Cage Prisoners count this as day 1967 of illegal imprisonment at GTMO; my Bush Countdown Calendar tells me we have 600 days left of this Administration.

Deep sighs all around.

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May 26, 2007, Damned Naysayers meet Crazy and Stupid

WaPo reports that the Senate Intelligence Committee is releasing some details from key pre-Iraq-War intelligence assessments (performed at our taxpayer expense) which demonstrate that the Bush Administration was flat-out warned about a lot of the post-invasion consequences that have come to pass vis a vis an insurgency and post-invasion chaos; indeed, if the reports are glaringly wrong in anything, it was in their somewhat optimistic assessment that Iraq rebuilding could be well underway and hence the insurgency should be subsiding by now.

Well, no plan is perfect, as they say.

Sen. Kit Bond (R-Mo) is not incorrect by pointing out that prognostication is hardly an exact science. But obviously, not even the most basic of post-war planning was done by this Bush Administration, and again, anticipating the best case scenario and "planning" for that is what stupid people and small children do; grown-ups understand that life is rarely like that, and proper planning prevents poor performance. Part of this was because of the political sell-- the insanely stupid overselling of the benefits of a war and underselling of the costs. But part of it was just stupid people (and yes, Gen. Tommy Franks, and Doug Feith, I mean you) and crazy people (and yes, Rummy and Wolfowitz, I mean you) getting together, to do something so remarkably catastrophic because it was both crazy AND stupid. And all under the direction of someone crazy and someone stupid.

And there we have it. And this is the fundamental problem with the whole Iraq funding "debate". You see, now, over four years later, fools like me, who only happened to be right on absolutely everything for exactly the right reason, can point out to so-called "liberal hawks" and fence-sitters and so forth, many of whom now have buyers' regret about the damned war they supported (in many cases for fantasy reasons like "it will somehow help Israel", "Saddam is the new Hitler" and so forth)... that they forgot that the war wasn't going to be conducted in some ideal world by super-men. It was going to be conducted in this world, by Don Rumsfeld's Pentagon, by generals who had survived his purge (Eric Shinseki, for example, did not, because he insisted on saying the correct amount of troops needed for the adventure), and by George W. Bush's Karl Rove-driven political/propaganda machine, and under the irrational ideological shop of Dick Cheney... Get the picture?

In March of 2003, just as now, anyone capable of objective observation knew that the Bush Administration had pretty much dropped the ball on dealing with AQ-- while the 9-11 plot could have happened against the most diligent and effective counter-measures, we had... far less than the most diligent and effective counter-measures were actually put in place. Indeed, the President's response to desperately concerned CIA briefers was "you covered your ass." Similarly, the stunning and decisive victory over the Taliban was allowed to be undermined by letting OBL and AQ leadership by and large escape, and by failing to consolidate the win by allowing Afghanistan to backslide into chaos-- and this was all clear by early 2003.

In short, this was hardly the Administration to trust with a blank check over something infinitely harder-- like taking on a substantially harder nut to crack like Iraq, something that Bush II denizens like Dick Cheney and Colin Powell were not willing to do a mere dozen years earlier when they worked for Bush Pere.

And yet... so many were willing to go along this time, still in the irrational post-9-11 haze. And here we are now, in a position with no real good options. Indeed, the Grey Lady, always a fan of the war and indeed one of its key boosters (despite the minstrel's tears often shed by its irrelevant editorial page), today has an article noting that most Iraqi officials and citizens believe violence and strike will increase if American forces leave Iraq. You think? Hobson's choices become that much worse when nobody understands anything; just as most Americans (to be fair, I don't believe that "support for the Iraq war" was ever overwhelming; in the early days, it may have been a bare plurality) didn't give two-s***s about debating the merits of the undertaking, simply assuming that Saddam Hussein had personally ordered the 9-11 attacks and was working on nuclear weapons for his follow-up... no one, really, is thinking about the consequences of just getting out.

"Both sides" are not fully rational at the moment-- either those accusing the other side of treason and surrender, or the "time-table" crowd, who just wants American casualties to end, and has no idea of the consequences of abandoning Iraq to its fate under the present circumstances. (As I intimated here, of course, all our options just happen to be bad, but that's just part of having an inadequate national understanding, is it not?) Those of us who were right all along... well what can we do? Not even the Congress we helped elect that we thought could change things... is willing to.

So there you are. While the Bush Administration loved to kick the intelligence community around, blaming it for its inadequacy in predicting the 9-11 attacks or in overstating the Saddam WMD threat... by and large, our intelligence community is still staffed by and large by competent career professionals who are well-trained, well-educated, and trying to do a decent job. That there are times when it is politically convenient to ignore their work, and then blame them for the mistakes of politicans, does not make their work less important... and when they are right, as they often are, well... what else can you say?

And that's just it. A perennially "positive attitude" may play well to an all-too often half-witted electorate... but if it means failing to acknowledge potential problems resulting from policies and making appropriate adjustments and contingency plans... that's both crazy and stupid.

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May 24, 2007, TD Blog Interview with Robert Rachlin

Robert D. Rachlin is a senior partner at Downs, Rachlin, Martin PLLC in Burlington, Vermont, and is on the faculty of Vermont Law School.  Mr. Rachlin is counsel to two Guantánamo detainees, Saudi national Ghassan Abdullah Al-Sharbi, who was one of only ten detainees charged by the military commissions until that commission process was found unlawful by the Supreme Court's Hamdan decision, and Algerian national Djamel Amezine, who has not been charged.  On May 22, 2007, I had the privilege of interviewing Mr. Rachlin by telephone.  What follows are my interview notes, as corrected where appropriate by Mr. Rachlin.
The Talking DogWhere were you on September 11th?

Robert Rachlin:  Then, as now, I was sitting right here in my office, in Burlington.  The news of the first attack came quickly, and we went into a conference room to watch television, and actually watched the second plane strike the tower.  After the first plane hit, there was some thought that it might be an accident.  However, having myself been a pilot for many years and a flight instructor, and looking at the weather, as today, a beautful and clear Tuesday morning, I thought otherwise.  Perhaps had it been instrument weather, coupled with bad radar or something like that, a poor pilot might have hit a building... but on a clear day, there was no way an airliner would have crashed into the World Trade Center unless it was intentional.
The Talking Dog:   Please identify your clients' names and nationalities, and what it is they are accused of, and where their current legal cases stand, given the recent court developments. I understand that Ghassan Abdullah Al-Sharbi had previously been charged with conspiracy to violate the laws of war (only one of ten so charged), but has not been re-charged thus far; is that correct? Please tell me how you came to be involved in representing them.

Robert Rachlin:  Al-Sharbi was charged before a military commission with conspiracy to engage in hostile acts against the United States and its allies.  After the first military commissions were invalidated by the Hamdan case, the Military Commissisons Act of 2006 ("MCA") was passed by Congress.  But, Al-Sharbi, a Saudi national, has not been charged under the MCA.  The Algerian, Djamel Amezine, has been accused of (in the Combatant Status Review Tribunals, or "CSRTs", rather than the commissions) with having been "associated with a terrrorist group, i.e., he was found in a place where Al Qaeda people were.  He declined to appear before the CSRT, and was thus unsurprisingly considered an enemy combatant.  He was in a house with an Al Qaeda individual, during a period when he and others were trying to escape from Afghanistan through the Tora Bora Mountains.  After September 11th, our attacks on the Taliban government made Arabs in Afghanistan very unpopular, and many tried to get out, and the Tora Bora mountains were one of the escape routes.  Djamel was picked up with the collaboration of Afghan guides, and then turned over to Pakistani bounty hunters who turned him over to the Americans; we understand the going rate was $5,000 per head. 
The Talking Dog:   Can you tell me your personal impressions of your clients, and your personal impressions of Guantanamo Bay (including of soldiers and other people you've encountered there as well as the place itself)?

Robert Rachlin:  The Center for Constitutional Rights (CCR) in New York was spearheading the effort to obtain private counsel for the detainees.  They solicited the American College of Trial Lawyers, and the head  of the Vermont chapter sent around an e-mail to the fellows of the ACTL, of which I am one-- and I said "well, someone's got to do it."  That was how I came to represent Amezine.
As to Al-Sharbi, his military appointed counsel, Lt. Cmdr. William Kuebler, was looking for assistance, and so advised CCR.  Well, fools rush in where angels fear to tread... so I accepted that representation as well.  I then became involved and got to know Bill and developed a working relationship with the Office of Chief Defense Counsel and traveled to GTMO with them-- on the military rotator-- rather than with regular habeas counsel on the quasi-charter flights out of Ft. Lauderdale.
Al-Sharbi and I have actually never met.  I was formally engaged by his father as "next friend."  Al Sharbi has refused all counsel, including his detailed military counsel.  Of course, the attorney client relationship is consensual.  I was on a panel recently, and will be on one again, where this issue has come up-- the issue of someone who doesn't want counsel.
Well, there is a question of whether there is an issue of consent and a consensual relationship where a client is under a disability-- such as being under-age, or having a mental illness, or, perhaps, being confined incommunicado from the rest of the world under as in the case of GTMO detainees...  my argument is that such people are rebuttably presumed to be acting under some kind of a disability.  I'm still exploring this-- there is no final answer.  While I haven't met Al-Sharbi, I have seen him at a commission proceeding; he has met Lt. Cmdr. Kuebler- and even that took some doing. Al-Sharbi has rejected counsel in "open" court (to the extent the commissions are open).
As to my other client, Djamel Amezine, he is clean cut, amiable, and courteous.  He has a sense of humor.  I’m not allowed to tell you what's in the classified government dossier, but I can tell you what is not there: there is nothing to suggest that he raised a finger against anyone.  He happened to be in a place where there were bad people-- indeed, he was trying to escape Afghanistan at a time and place when bad people were escaping, and ergo, he is bad!  He had gotten out of Algeria during a previous round of that country's troubles. I understanding he might have been traveling with a false passport.
The Talking Dog:   Were you involved in the recent lobbying effort that Guantanamo habeas corpus attorneys took to members of Congress? Whether you were or not, can you comment on it? Do you see any possibility that Congress will take action with respect to Guantanamo?

Robert Rachlin:  I was not involved specifically in that action.  However, I have done my own "version".  I know our senator, Pat Leahy, now Chairman of the Judiciary Committee, very well.  I visited him in his office, with military defense counsel Major Tom  Fleener and Lt. Cmdr. Kuebler, and we talked about the circumstances of Guantánamo.  Regardless of the rest of the country, our Vermont Congressional delegation is firmly on the side of the angels on this issue.
Pat Leahy is co-sponsoring a bill to amend the Military Commissions Act to restore habeas corpus with Sen.  Arlen Specter.  I don't know where that stands, but certainly, as Leahy and Spector are respectively the chairman and ranking minority member of the Judiciary Committee, it will surely get a committee hearing.
And so while I was not involved with that particular round of Congressional outreach, I have done my own "brainstorming" with lawyers, officials and legislators on these issues.
The Talking Dog:  Can you comment, in general, and what appears to be the Bush Administration's campaign this year to attack habeas lawyers, from Cully Stimson's remarks to the latest court motion to limit (or end) attorney visits to Guantanamo?
Robert Rachlin:  Looking at it objectively, the law serves as a constraint on government, and specifically, as a constraint on the executive and executive power.  Any executive tries to expand his powers-- it's almost a law of nature.  And lawyers often stand in the way of that expansion, so the executive tends to attack lawyers.
Stimson's comments were deplorable in their own right from the standpoint of our traditions and values.  But what has emerged, and is amazing, is that he got so little support.  Indeed, the media and the press took him to task to the point were he resigned-- and this is a good sign.  He's "the gift that keeps on giving""-- he promoted the rule of law by making naive and indefensible attacks on it.
The recent attempt to limit visits also smacks of a petulant effort to strike out at those trying to put brakes on executive power.  Now, if the habeas cases are dismissed per the recent Al Odah and Boumedienne cases, and the government argues that, as a result, the protective orders applying to lawyers in those cases no longer apply until the lawyers file new Detainee Treatment Act (DTA) petitions (granting a very limited review to the D.C. Circuit from the CSRTs-- literally review only of whether CSRT procedures themselves were properly followed) and obtain new protective orders-- that would certainly be a far sounder tactic legally than simply the blanket ban being sought for "security" reasons as now. 
But again. as lawyers are trying to constrain executive power... the attacks come, no matter how ridiculous some of the attacks may be.
The Talking Dog:    Can you comment over all on your view of how the media has handled the recent assaults on attorneys, and can you comment on how the media has handled American detention policy overall?
Robert Rachlin:  My impression is that the media have been overwhelmingly against the detention policy.  Certainly, most editorials in the "responsible" news media seem to be uniformly against it, joining, by the way, most other countries in the world.
The Talking Dog:   What has been your personal experience with the military commissions (to the extent any proceedings took place before the Hamdan decision found the first version unlawful), the combatant status review tribunals, and habeas corpus proceedings, on behalf of your clients? Have you taken any action in light of the recent Boumediene decision by the D.C. Circuit Court and the denial of certiorari by the U.S. Supreme Court? 

Robert Rachlin:  The military commissions have two extremely serious flaws (not military commissions in general, but I'm talking about the particular commissions associated with Guantánamo).  These flaws can be classified as systemic and procedural.

First the systemic flaws. The Secretary of Defense appoints the convening authority or appointing authority (different terms for the same thing),and the chief defense counsel and the prosecutors.  The convening authority appoints the judges. This is a serious flaw. In regular courts martial, the convening authority does not appoint judges.  But in this case, the highest prosecuting authority, the Secretary of Defense is appointing the judges via his appointed convening authority.   So... the convening authority, answerable to the SecDef, is also appointing the judges who will judge the cases they choose to prosecute. 
It is generally  believed by people  involved in defense that the judges have been selected on the basis of their proneness and propensity to convict. The judges are all military judges, selected from the court-martial system. 
Another problem is that the convening authority acts effectively as a court of appeal from the commissions. One actual example was the question of whether detainees would be allowed to defend themselves.  The presiding officer referred the question to the convening authority, who said “no.”  This is a serious departure from Anglo-American notions and traditions of separation of prosecutors from judges and how past military commissions and courts martial have been conducted. 

This systemic flaw is not merely theoretical. A couple of years ago, Brigadier General Hemingway-- assisting the convening authority -- announced that everyone at GTMO was guilty. In lectures, I give the analogy of an individual charged here in Vermont in one of our district courts. The Chief Justice of our Supreme Court, which might review that individual's case, announces before trial "that guy is guilty"...  well, this just cannot be in a system that respects the rule of law.
Besides the structural flaws, there are serious procedural flaws.  For example, a detainee can be convicted purely on hearsay evidence.  If the government contends that evidence is "sensitive", it can be kept from the hearing of the detainee - in other words, a detainee can be convicted on evidence about which he knows nothing.  There is, of course, no application of the Federal Rules of Evidence. The chief rule of evidence is that anything the presiding officer considers “reasonably probative” may be admitted.
And there is a Catch-22 on torture.  Evidence obtained by torture cannot, under current rules, be admitted.  But ... no evidence is permitted as to the manner of interrogations-- so you cannot prove that evidence was obtained by torture!  This is right out of Kafka-- a truly abominable system.  The individuals involved in this and appointed as prosecutors and judges are nice, courteous people as individuals, but they are operating in a framework that is a reproach to everything we stand for.
The Talking Dog:   Do you have any knowledge of whether the military intends to re-charge Mr. al-Sharbi under its "new and improved" military commissions apparatus? 
Robert Rachlin:  Again, I don't know; he has not been re-charged thus far.
The Talking Dog:   Can you describe what abuses your clients have suffered, and to what extent (if any) you have observed abuse or abusive conditions? 

Robert Rachlin:  I cannot speak about my own clients.  However, FBI reports of abuse that FBI agents actually observed have been released and de-classified.  So.. abuse has been documented by the FBI-- which will be rather difficult to dismiss as a "tool of the left-wing"; the specifics are reported in declassified documents, which I possess.
The Talking Dog:   Do you see any kind of "exit strategy", for your own clients or for Guantanamo or American detention policy in general (for example, has your client ever been offered anything like the guilty plea that Hicks was offered), or do you concur with my view that Guantanamo and most of its current residents will remain in place as long as George W. Bush is the President?
Robert Rachlin:  Overall, the only exit strategy will be political.  I'm afraid that the operation of law will not spring anybody-- not in the nexxt year or two, anyway.  The political pressure, however, is growing.
One possible exit strategy is to close GTMO-- decide who are the really bad guys-- after all, not everyone we are holding there are boy scouts-- and, if we have the evidence, charge them, transfer them to a secure facility within the United States, and then try them, giving them the normal procedural protections that we give others we try.
The concern about the security associated with "bringing terrorists to the United States" is silly.  We tried Moussaoui in Virginia.  He was convicted in a proceeding that no one criticized as unfair.  Needless to say, no jihadists were running rampant in the streets as a result of that.  Again, the exit strategy is to decide "who are the bad guys?"-- who committed cognizable offenses under American or international law, and then charge them and try them.  If they are acquitted, send them on their way.
Of course, a lot of this will depend on public opinion, and the public is just not educated about these issues.  Further, most Americans take the unfortunate attitude (as is often the case with Iraq) of, "well, it doesn't affect me personally, so I don't care that much").
We need to elect people to Congress who aren't wimps-- people who are less afraid of having the support of a half-educated electorate.  And we need a much more responsible media, a media that gives actual information (such as what we're doing right now with this interview) rather than just sound-bites.  And we ultimately need people to get  more balanced information than is available on their 6:30 newscasts.
The Talking DogI join all of my readers in thanking Mr. Rachlin for being so generous with his time and for that informative interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys 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 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, and with journalist and author David Rose on Guantanamo related issues to be of interest.

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May 24, 2007, I Walk Crossed the Line

Thus sayeth Monica Goodling, during testimony before a House committee yesterday. She was referring to her service as a loyal Christianist soldier-bot, duly vetting out well-qualified applicants to the Department of Justice for such crimes as contributing to Democratic candidates, or not being bat-shit right-wing enough to satisfy her Pat Robertson-honed political (though clearly not legal) skills.

She also appears to be trying to throw former Deputy Atty. Gen. Paul McNulty and Gonzales aide Kyle Sampson under the bus, by contending that they attended key meetings (along with Gonzales himself) discussing the U.S. Attorney firing scheme with the White House (i.e. Karl Rove), while she did not.

All amazing. Bruce the Veep observes, correctly, that little here (for a change!) is an actual crime, so much as a long-standing tradition that it is unseemly to subvert administration of justice to political ends... maybe we need a Constitutional Amendment to enshrine all this, lest future Presidents act as fecklessly in this regard as this one. (BTW, don't get me wrong: Sen. Pete Domenici and Congresswoman Heather Wilson should both be facing criminal charges for obstruction of justice... I'm just saying that the White House and Justice Department-- for a change-- did a great deal morally and objectively wrong here, though not necessarily violative of criminal laws).

Ms. Goodling bought herself immunity for her own "line-crossing". Maybe she's not as incompetent as her educational pedigree might lead one to suspect she is...

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May 22, 2007, Skid- Bench-marks... or "no good options"

And so, handing the President a more or less complete victory in the inter-branch urinating contest associated with funding the Iraq war, it seems that the Democratic Congressional leaders have removed provisions for troop withdrawal from the new proposed Iraq war supplemental bill, retreating from what had been significant Congressional victories in holding together on a war funding .

Well, well. Polling does show that a substantial majority of Americans oppose the Presidents handling of the Iraq war, and indeed, a substantial majority favor a troop reduction. But in practical terms, there really are only two choices with Iraq: (1) stay the course, or (2) get out, and get out now. The "timetables" are really kind of bulls***: the hope that American casualties will magically go down while our "strategic goals" (whatever they are) somehow still get met. Well... it won't happen. It's pick one: stay, or leave. It's understood that leaving means leave within a few weeks (as in weeks, not years) of draw-down. And no permanent bases. Whatever shape the Iraqi government and military and police are in... is good enough. But that's it. Leaving would mean leaving. Frankly, it's an understandable, and defensible position. And what's more...

I've reached the point where I believe that nothing George W. Bush touches as President will come out as anything other than a disaster; as such, Iraq falls into that category, and the only thing we can guarantee over the next 609 days that he's in office as to Iraq is that he'll make it worse, period. Why? Because he is an incompetent, mean-spirited, terrible leader, and an arrogant, superficial, uninquisitive, uninteresting and overall disagreeable human being. And btw... he is a terrible President, who, frankly, lacked the experience required for the job, and he has not grown into it. But he's trying to do what he thinks is a decent job. The problem is, he's not up to it. Nor are the political whores and yes-men (and yes-women) and Christianist soldier-bots he has surrounded himself with. That's just the sad reality.

But then, notwithstanding what is not so much a rooting interest in Bush failing as a certainty that if Bush has anything to do with it, failure is inevitable, American strategic interests require a stable Middle East. There will be adverse geo-political consequences to the United States removing itself from Iraq at this juncture (not to mention a serious oil price effect with likely economic consequences). The problem, of course, is that with George W. Bush in charge, there will be adverse geo-political consequences to the United States not removing itself from Iraq... An unstable Iraq spiraling into the all-out civil war we seem determined to quell will likely invite in other regional players (Iran and Syria to be sure, Turkey probably, possibly Russia and Saudi Arabia, among others), and may well spill over into Saudi Arabia and the Gulf States... of course, millions of refugees in the region from Iraq are already destabilizing things... And as bad as things are for the Iraqi people now... things can always get even worse.

Obviously, we have no particularly good choices now... many think "the surge" isn't working as intended; it is unclear what General Petraeus thinks-- but he may well declare the situation untenable in a few months... in which case, there would be no doubt of the truth of that statement, though Bush, Cheney, Rove, et al. (backed no doubt by the Washington press establishment, the right-wing blogs and no one else-- no one else at all) would dismiss even that as "partisan naysaying", and go on as before, the lives of those serving in Iraq be damned.

So there you go. From the standpoint of "discipline", what Harry and Louise Nancy did is doubly bad-- they wasted what appeared to be a (finally!) disciplined Democratic caucus, which they may not be able to hold together too much longer, and even worse, they failed to impose discipline on the President, who will continue to enjoy a blank check to run his war as incompetently as he sees fit devoid of oversight. We won't talk about how disappointing this is to the many voters who hoped that a Democratic Congress would at least not surrender without a fight... to see it doing just that.

However, from the standpoint of "what the hell are we doing over there...", if the choice to be made is ultimately "stay the course until someone who doesn't have his head up his (or her!) ass, i.e., the next Democratic President, can take charge of the military and achieve our strategic goals, unlike the current Oval-Office-Occupier..." well, the war, alas, has to be paid for, somehow, and that seems to be what these supplemental funding bills are for. But can we wait until the end of January 2009, when Bush's exit strategy, i.e., Bush exits the White House, will take effect? There's the $364 billion question, is it not?

Mostly, we should never have gone into Iraq in the first place: the benefits of doing so were grossly overstated, the reasons for doing so were made up, and the costs of doing so were dismissed and downplayed. (And did I mention that the opposition to it was grossly understated as well? The New York Times seemed to have a the same rooting interest in the damned war as Fox News, featuring everything from overstating Saddam's arsenal of really bad s***, to understating how many people showed up on the coldest day in years in NYC to protest the war, that number being over 400,000 including myself, around 5% of the population of the City attacked on 9-11, taking to the streets to protest an insanely stupid military action that we knew was unrelated to that day, with the so-called liberal Times insisting it was less than 100,000, because the Republican mayor said so. But I digress.)

Ah... having gone into Iraq, we have changed the playing field and moved pieces around the chess-board; we no longer have the same options we did while Saddam was in power. Then we had at least one "not good but at least better than the others" option: continue containing, and let Saddam stabilize the neighborhood, albeit nastily, while we chipped away at the little power he had. Now... well, we just have no good options. What else can you say?

This has been Skid- Bench-marks... or "no good options".

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May 18, 2007, TD Blog Interview with Tina Foster

Tina Foster is executive director of the New York-based International Justice Network, a human rights group. Ms. Foster was previously a staff attorney with the Center for Constitutional Rights (CCR), handling coordination of pro-bono attorneys handling Guantanamo detainee cases. Prior to that, she was an associate at the New York office of the Clifford Chance law firm, where she worked on Guantanamo detainee cases pro bono. On May 16, 2007, I had the privilege of interviewing her. What follows are my interview notes, corrected as appropriate by Ms. Foster.

The Talking Dog: Where were you on September 11th?

Tina Foster: That day I was supposed to fly to Nairobi, Kenya for a three month trip, at the completion of a judicial clerkship. At that time, my apartment was next to the World Trade Center... it was so close to the WTC as to have been damaged as a result of the attacks. Because I was planning on traveling the next day, however, I spent the night with a friend in Brooklyn nearer to the airport. I woke up, and it felt that I was in a dream. For one thing, I had overslept, about which I was glad, because I was supposed to go to the Eastern Mountain Sports store at the World Trade Center to buy a backpack that morning.

I did get to Kenya a week later. There, people knew I was coming from New York, and were extremely sympathetic, having themselves been the victim of terror attacks just a few years before. On September 11th, however, I ran around Brooklyn trying to give blood. Somewhere, in a van in Brooklyn on its way to a blood center, someone had managed to say that the T.V. was showing pictures of people celebrating in Arab countries... I felt like saying that this was probably bunk, but as everyone else was obviously agitated, and it was probably not a good idea to say anything so I didn't. Ironically, I'm actually not eligible to give blood, as I had lived in England during their mad cow disease scare... but I tried anyway.

The Talking Dog: Please tell me about your experiences with the Center for Constitutional Rights with respect to coordinating representation of Guantanamo Bay detainees (and your own detainee representation work)?

Tina Foster: In June of 2004, Clifford Chance was one of around 10 firms that decided to take on detainee representation after the Rasul case. I was very proud of our firm, as at that time, not a lot of other firms were willing to do it. My first Guantanamo (GTMO) case was at Clifford Chance, on behalf of French nationals. Most of the early cases were on behalf of Europeans, who proved to be the most sympathetic clients to an American audience, and were people with families most likely to be familiar with Western legal system, and therefore, were more likely to have actually sought out legal representation.

The case I was assigned drew Judge Richard Leon in the U.S. District Court in Washington. I was one of the first lawyers to appear before him, in a group of cases called Khalid, et al., French nationals who were eventually released. Another group of cases before Judge Leon, Boumediene, Bosnian Algerians, involve detainees still at GTMO.

My initial involvement was filing of the petition and related advocacy... I had generally been interested in human rights matters, and this was most exciting and appealing work. I had a mid-life crisis at age 28, and although I got great litigation experience for a large law firm, handling many things I understand are unusual in that context, nonetheless, I decided to take six months off and volunteered at CCR, to try to recruit more lawyers to take more of these cases.

At CCR, we had received a number of requests- authorizations for representations from family members, again, generally from countries familiar with Western legal systems. But while there were many such requests, there weren't many lawyers, so it was decided that the first thing we'd better do was to get more lawyers on board. Indeed, what I found most impressive about CCR was that it brought the first cases for GTMO detainees in February 2002, when no one else would take them... even at a time when the world did not yet know that the overwhelming majority of those held there would be completely innocent of anything.

I appreciated this even more after I discovered just how difficult it was to get law firms to become involved. Generally, after enough people learned more about what was going on, and how obstreperously the government was behaving, more attorneys signed on. But it was difficult. And so, getting more attorneys to sign on became my specific role.. Originally we had had only 15 cases brought for 75 detainees, while there were over 500 there at the time. Eventually, we ran out of authorizations, and efforts to even get the names of detainees were stymied by the government.

Eventually, a blanket case was brought (John Does 1 through 570) well before the Detainee Treatment Act was passed, which purported to cut off their right to representation. The idea was to try to identify these people, among other methods, by tracking down people in countries with large populations of detainees. Yemen, for example, and Saudi Arabia. I traveled to Yemen, and Bahrain, where I could meet Saudis. I was willing to do this, and (as an Iranian-American dual national) I felt I already had a foot in the Middle East. I was more familiar with the Muslim culture than most Americans. My own background helped me in being persuasive in getting families of detainees to sign up. Getting these peoples’ trust in our legal processes is a very difficult matter, and might be more so by someone less familiar and comfortable.

Because of my dual nationality (among other reasons), I have not been to GTMO, as I wouldn't even bother to try to get a security clearance given current attitudes of the Bush Administration. In my role, I have no access to classified information. So, when I speak to former detainees, their families and so forth, and they tell me the same details that were previously told to attorneys in a "classified" context, I can speak freely about them.

The Talking Dog: In that same context, please tell me of the efforts associated with representation of detainees of the United States in other theaters, notably Kandahar and Bagram in Afghanistan, Diego Garcia in the Indian Ocean, and other locations including but not limited to CIA "ghost prisons" and outsourced detention and torture facilities in such locales as Syria, Egypt, Morrocco and elsewhere, whether by CCR, or other agencies?

Tina Foster: The International Justice Network has filed the first habeas corpus petition for people detained at Bagram, Afghanistan. One of my clients is Yemeni. Neither I, nor anyone else, can explain why he is at Bagram, as opposed to GTMO, or anywhere else for that matter. The average length of time a detainee is at Bagram, before being shipped to GTMO, is 14 months-- at least according to a military source that leaked that information to the New York Times.

My Yemeni client has been there for at least three years, and probably well longer than that. No lawyer has ever been permitted there. Legally, the case we brought is in its beginning stages-- naturally, the government moved to dismiss, based on a lack of jurisdiction. We are arguing that Rasul applies, and confers rights on the detainees there, and the government of course argues that such rights have been extinguished by the Military Commissions Act (MCA).

We argued that the MCA does not apply because no one at Bagram has had a "Combatant Status Review Tribunal", or CSRT, which the GTMO detainees all had (since Rasul, anyway). Now, almost as if by magic, the military announced, two days before a court deadline on this issue, that it has established new CSRT-like proceedings (none of which involve the detainee even present, of course), but that this somehow satisfies the prerequisites for depriving the court of jurisdiction. Thus far, we have two cases, one before Judge Kessler and the other before Judge Bates, both in the Washington, D.C. federal district court, and we are waiting to see if argument will be granted.

The Talking Dog: Let me interject, and ask, whether or not the government has asserted that the Eisentrager case effectively controls the issue (barring court jurisdiction), how would you overcome such an argument?

Tina Foster: The Eisentrager case dealt with prisoners who were already tried and convicted of crimes under military proceedings, albeit possibly irregular ones. Now, the United States government argues that no law applies to prisoners, at all... it can simply make all laws go away, because we are now in a super-special, unique "war on terror" that is different from all wars that have ever been.

Well, the government cannot have it both ways, arguing on the one hand that we are not in a traditional war, so that they don’t have to be bound by the laws of war, but then we are in a “war on terror”, and so normal criminal laws don’t apply either. But this is precisely what the government has been doing.

Getting back to Bagram, that facility is not a detention facility for those held who have been proven to be dangerous terrorists, or captured on the battlefield... indeed, one can ask why people would be sent to Bagram from places like Bosnia and Africa-- why do it? Those people were obviously not captured "on the battlefield", but brought to a facility near a war zone! Why? Because, like GTMO, Bagram is used as a facility outside of any law. We say that the Afghans control it, but this is nonsense-- the Afghans have no say or control there at all. Like GTMO, we have a lease agreement that gives us total control of the place. Well, if we control the place, then shouldn't our law apply there?

Of course, the Military Commissions Act purported to overrule the Supreme Court in Hamdan (which found that detainees from the Afghan conflict were still entitled to Geneva Convention protections) by denying the rights of anyone to assert Geneva Convention rights in court proceedings. Certainly, the government's legal position is that no law applies, and indeed, the government can do what it wants, up to and including killing people there, torturing people to death (as has been documented on more than one occasion), without any remedy at all. Indeed, with no lawful means of redress whatsoever. And so the question is asked in the rest of the world-- and especially in the Arab and Muslim world-- if the United States takes away lawful means of redress... just what do we have left?

Specifically in our case, in the government's motion to dismiss, it has asserted all sorts of new facts that aren't in our petition. This will open the door to a possible factual dispute, which may require discovery, i.e., keeping the cases going. My Bagram cases-- unlike the GTMO cases-- are not stayed.

As to the big picture, people in the Middle East are certainly aware that the CIA kidnaps people, but this had been a dirty little secret and key word "little". It is no longer-- some estimates are that as many as 15,000 people have found their way into American custody in foreign locations intended to be beyond any law. And now, our government actually argues in court that this is all perfectly legal!

Before the "War on Terror", none of us were under the impression that this "never happened"-- but it was quiet-- and relatively rare. Now it is huge, and the government tries to defend it, as lawful, and just. Indeed, we have evolved (if you can call it that) to the point where we talk about torture and indefinite detention without charge or trial as if they are necessary and essential elements of our security.

The Talking Dog: You are, of course, executive director of the International Justice Network... what does IJN do, in general, and specifically, can you tell me what IJN does with respect to asserting legal rights on behalf of those detained by the United States and its allies and contractors pursuant to the "global war on terror"?

Tina Foster: I decided to do the IJN with two major goals in mind. One, was so that I could use the same model I used at CCR to coordinate a large scale legal effort, with different attorneys (many that don't ordinarily do this) and coordinating an alliance of large private firms, solo practitioners, federal defenders, and building appropriate communications tools to manage an effective network of practitioners doing this critical work. We have finally arrived at the point where, collectively, we have comparable resources to the government, certainly in the GTMO detainee area. I think bringing those resources to bear has been the key to a lot of the attention that GTMO matters have received so far, and to the success (such as there has been) achieved. I wanted to use this same model to bring together organizations and individuals that could make a contribution in broader human rights fields.

The second contribution (and goal of IJN I had in mind) was that-- while I could certainly do "the law stuff" just fine (though other people were far more erudite and brilliant at advocacy or writing than I), I could, perhaps uniquely, bridge two culutures, to convince Middle Easterners that they could and should trust an American lawyer to try to have faith in our system, even though it had seemed to have let them down so far. So, the other thing I'd like to have IJN be able to accomplish is to bring together local and regional NGO's from outside the West, to try to use their example to improve Western models... particularly after seeing the unbelievable work being done in places like Afghanistan, Yemen, the Phillipiines and Bahrain by groups with no resources and no help, and yet, accomplishing amazing things... I feel that this presents a great opportunity to try to link these people with resources they need and hopefully the resources to make their voices heard, and indeed, to link people with similar values in the human rights area, to make the use of resources for such networks more efficient and effective.

The Talking Dog: At this point, have you managed, either from their families or any other way, to obtain representation for any individual clients currently detained by the United States, at Bagram, Kandahar, or elsewhere?

Tina Foster: I have co-counsel in the Bagram cases, and we'll see what develops after the intial motions are decided. The Baach Robinson firm in Washington, D.C. (the same firm that filed a damages case on behalf of the Tipton Three) is one of my co-counsel. Other attorneys have expressed interest, but we haven't yet brought cases on behalf of everyone we represent. We have other types of cases in mind, and prepared to go, but they have not yet been filed.

As far as I know, no one else has filed habeas corpus petitions or other cases on behalf of detainees at Bagram or anywhere other than GTMO.

The Talking Dog: Tell us about your recent trip to Afghanistan that became the subject of the New Republic article; how did that get set up, did you get access to the detention facility, and have there been repercussions from that visit?

Tina Foster: Well, no one has access to Bagram. Indeed, you would get shot if you even try to get near it. Even the Afghans have no access to it (though they are allowed in to clean and do other menial work). The prison in Afghanistan I did see-- the Pul-e-Charkhi-- -- was originally a main Soviet prison, and was notoriously awful. With United States funding, a special wing has being built, intended to house Afghan nationals now detained at GTMO and other so-called "War on Terror" detainees. I managed to get into this prison without official permission, at least while the wing was under construction. I understand that 12 people from Bagram have been transferred there, though no one has been given access to it either, and indeed, the intent is to move the Afghan GTMO detainees to "Afghan custody", even though it is really American custody (the Afghans are "being trained" to run the facility by Americans right now).

The hold up on moving the Afghan GTMO detainees there is that the Americans are pressuring Afghanistan to pass special legislation creating a special class of enemy combatants outside of Afghanistan's constitution and existing criminal laws, and Afghanistan, thus far, hasn't been willing to do it. Until Afghanistan ratifies this, or a high level international agreement is reached for transfer of custody effectively doing the same thing, custody won't be transferred... I do not believe that the United States has not transferred a single detainee without a transfer agreement.

As to the magazine article, Harper's had an interest in the work of human rights lawyers willing to travel to Afghanistan and other places to represent Guantanamo detainees. So the reporter (Eliza Griswold) tagged along for about a month... it was challenging, though she is a great reporter and I thought her story was very fair. Of course, now, on top of the other places I've visited, I have a stamp from Afghanistan in my passport – which makes airport security interesting!

The Talking Dog: Tell us about your work with respect to other venues, and I'm specifically asking about the Philippines (from which I understand you are on some sort of watch list vis a vis entering)?

Tina Foster: No one in the United States knows much, or anything really, about the Philippines. It is not a real democracy. The executive uses her alliance with the United States to disregard the will of the people. In the recent Philippine elections, numerous opposition candidates were threatened, and several other activists just disappeared. Thus far, up to 800 lawyers, judges and political activists have been murdered. The government just does it. Every human rights group is aware of this, and every group operating there is under constant threat.

I was part of a group that was the first to publish a report documenting the human rights situation in the Philippines, and I was quoted in Smithsonian magazine as suggesting that the Philippine President is using her alliance with the United States in the so-called War on Terror as a license to kill. It is, therefore, not surprising to learn that I won't be welcome to return to that country.

While I was there, they couldn't actually harm me given my United States passport, but a huge number of Filipinos have been killed. The machinery of the progressive movement that ousted the dictator Ferdinand Marcos still exists, and thus there is an active legal resistance to the increasingly authoritarian rule of the current Philippine government.

The Talking Dog: Can you describe the origins of the legal strategy (and am I correct that this IS the legal strategy!) that seems to focus almost exclusively on the Guantanamo detainees, whom I understand are the minority of those held by our government (a tiny minority, counting Iraq), as opposed to elsewhere in "the pipeline", including of course, Bagram, Kandahar, Diego Garcia and the ghost and black prisons, as well as those "renditioned" elsewhere?

Tina Foster: I do think it was an intentional strategy. GTMO is the easiest detention facility to understand: it is so far from the theater of battle, and so close to the United States. Furthermore, it is sexy, as it was the venue for a Jack Nicholson/Tom Cruise movie! It is certainly more accessible and comprehensible than Bagram, or Abu Ghraib (at least, before the photos came out).

Legally, it is also the easiest challenge, because it was the easiest to demonstrate that the United States is in full and absolute control of the place. You could also say that the in full and absolute control of Bagram, or other places, of course. But GTMO has become the symbol of U.S. detention policy, and that has not changed. Indeed, the policy itself has not changed-- at all, even after the government lost the Rasul case... it's just that the government did a better job of hiding detainees and abuses elsewhere.

There is a fear-- a wide fear among many in the human rights community-- that if the issue expands too far beyond GTMO, the public will not be able to comprehend the full breadth of the problem, and it will be overwhelming and undermine the support that has been won so far.

From my perspective, personally... I wish I had done this (bringing legal proceedings to challenge the legality of detentions at Bagram) even earlier.

The Talking Dog: What message would you say people need to know, about other American activities besides Guantanamo, and what, if anything, can we do about it, with all the publicity (and legal action) pertaining to Guantanamo, and seemingly conceding that those held elsewhere are held completely without recourse (even to Geneva Convention rights, notwithstanding that the Supreme Court has held that the Geneva Conventions clearly apply everywhere we hold anyone)? What can the rest of us do about this? Is anything pending in Congress about any of this?

Tina Foster: We need to restore the rule of law. While I favor closing GTMO, that does not solve the problem. The problem has, thus far, been transferred elsewhere, and still exists, and closing GTMO without doing anything else would just move the problem out of sight. As a people, we need to decide whether or not we want our government and military to disregard the rule of law as long as they do so in someone else's country.

What has been so infuriating to people in the Middle East and the rest of the world is that double standard regarding human rights and fundamental freedoms. For U.S. citizens at home, we ordinarily provide a panoply of legal rights... but the message is that other people are less than human-- they don't even deserve the most basic of human rights. This double standard is so galling to so many people, that it has lowered the standing of the United States in the eyes of many.

Right now there is nothing specific in Congress addressing these issues – other than in the context of Guantanamo. But the to the extent that there are bills in Congress that will restore the rule of law by restoring the rights that have been taken away-- even a restoration to rights as they existed just before September 11th-- that will go a long way toward restoring our standing.

The Talking Dog: I join all my readers in thanking Ms. Foster for being so generous with her time and for giving us such an eye-opening interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys 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 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, and with journalist and author David Rose on Guantanamo related issues to be of interest.

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May 17, 2007, With friends like these...

The Grey Lady gives us this discussion of former Deputy Attorney General (and U.S. Attorney in Manhattan) James Comey, notably Comey's tendency to do things that bite the Bush Administration on the tushy, including appointing Patrick FitzGerald as special prosecutor, praising a group of fired U.S. Attorneys, and of late, testifying before the Sentate Judiciary Committee as to the extraordinarily poor taste shown by Andy Card and (yes!) Alberto "Abu" Gonzales, who showed up in a hospital intensive care unit to try to cajole then Attorney General John Ashcroft into signing off on a warrantless eavesdropping program that even Ashcroft thought was illegal.

There once was a group of Republicans who believed in good government and had some modicum of integrity; Comey harkens back to that group. Obviously, those involved in the most analogous event, the Saturday Night Massacre, William Ruckenshaus and the late Eliot Richardson, or Reagan's Chief of Staff and Treasury Secretary Don Regan, come to mind as well. Those folks is all dead, or out of government, and are not welcome in the current Republican Party.

And soon, one imagines, there will be no place in it for Mr. Comey, who, notwithstanding his new role as counsel for defense contractor/GOP contributor Lockheed Martin, may well have outlived his usefulness to The Party and Dear Leader.

But who knows? It looks like some cracks may be developing in Fortress Dubya, as even Paul Wolfowitz may soon be thrown under the bus. (Of course, as noted elsewhere, Wolfowitz may be replaced by his girlfriend... )

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May 15, 2007, Moral Majority Eternity?

We'll probably not get to know what, if anything, the after-life will hold for the Rev. Jerry Falwell, who passed away today at 73.

Falwell's legacy will be... conroversial. He was extremely instrumental in helping to forge the [toxic] alliance between right-wing religious extremism and right-wing business extremism that has become "the base" of the modern Republican Party.

Extreme... is a pretty good description of him, love him or hate him, whether attacking purple purse-carrying children's character Tinky Winky of the Teletubbies for being, you know, gay, or for blaming America first (he and his fellow Virginia-based toxic-religio-extremist Pat Robertson did just that) contending that America's own profligacy of actually separating Church and State as mandated by our Constitution resulted directly in the events of September 11th... Falwell just didn't go in for half-measures.

What can you say? Certainly, Falwell was a symbol of the times-- a man who stood for clinging to some nostalgic view of the past... a past when a lot of people knew their place, if you know what I mean. A man with a so-called moral values platform long on the values of obedience and obeisance to authority, and short on, oh, charity, compassion, or much of what many believe to be the actual teachings of Christ or what many others believe to be virtues.
In short, he stood for a paradigm for what this country has become in the past twenty-five years or so... prosperity for the fortunate few, because God Himself wills it; struggles or penury for many more, because, hey, God wills that too.

Well, R.I.P., Rev. Falwell. Maybe you were right about God's will; we'd all prefer to think we live in a universe with a benign and loving Deity, or else none at all, rather than the angry, vindictive and arbitrary one you believed in, but, hey, who knows, right?

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May 14, 2007, Trials and Trivializations

While the American Constitution doesn't officially have a "liquidate the enemies of the State" provision, nor does it have a suspension clause when politically expedient... apparently, the "spirit" of the Constitution is such that, Vietnam War style, we must destroy our civil liberties in order to save them.

Hence, we give you exhibit A, as the opening statements were given in the "new and improved" trial of former "enemy combatant" and alleged "dirty bomber" Jose Padilla in Miami. You will recall that U.S. citizen Padilla found himself in a Kafkaesque conundrum, held in solitary confinement and psychologically tortured and abused for years (for background, you may find my interviews with Padilla's lawyers Donna Newman and Andrew Patel of interest)... rather than lose on the point of its "authority" to hold citizens like Padilla forever at the sole whim of the executive before the Supreme Court, the Bush Administration settled for the somewhat more pedestrian charges of being part of a conspiracy to aid terrorism and went into the criminal justice system... the problem with these pedestrian charges is that it does not look likely that the government will be able to actually prove them against Mr. Padilla, and hopes that simply by repeating "Al Qaeda" enough times, a jury will buy it.

Meanwhile, at a Navy base in Norfolk, VA, the court-martial of Lt. Cmdr. Matthew Diaz commences; Diaz is accused of leaking "classified information", in that case, sending a list of names of Guantanamo (GTMO) detainees to New York's Center for Constitutional Rights (for some background, though not on the Diaz case, CCR's President Michael Ratner is interviewed by me here)... CCR is, of course, the principal coordinating group for legal representation for GTMO detainees. Diaz's defense argues that it is not clear at all that the list of detainees was even classified... (for some background on how similar charges worked out against another GTMO officer, former Army Captain and GTMO Chaplain James Yee is interviewed here). Frankly, the Bush Administration's refusal to release the names of those it detained was an outrage and a violation of both American and international law; eventually, the Pentagon was ordered to release the names (indeed, one version of them appears on this very blog, here). Needless to say, I'm somewhat less familiar with the Diaz case than I am with the Padilla case... I will say that given the Bush Administration's credibility in prosecuting terror cases and everything else... I have grave doubts about the strength of the charges in both... but even a stopped clock is right twice a day. Not how you bet, of course. But still...

Still... American justice appears just that much more oxymoronic as we see Paul McNulty, Deputy Attorney General of the United States, i.e., Number Two (apparently in every sense of the term) at the Justice Department, has just announced his resignation. McNulty had served in several Administration positions, including as United States Attorney for the Eastern District of Virginia, where he presided over numerous instances of prosecutorial misconduct that came to the fore during the Moussaoui case. In the true style of the Bush Administration, because of the mishandling of the case (as a result of which, Moussaoui did not receive the death penalty), McNulty was rewarded with a promotion, and the opportunity to politicize the entire country's administration of justice. Unfortunately, McNulty was a little too quick to spill the beans that Karl Rove wanted his personal friends and proteges to have United States Attorney positions... which, you know, embarrassed A.G. Alberto "The Geneva Conventions are too QUAINT to be Adhered to" Gonzales... but nowhere near the point of him resigning, or anything.

I suppose by this point, you'all get the picture... and it ain't pretty. What's amazing is that while the "suspension clause" isn't in the Constitution, impeachment actually is.

I just wouldn't be expecting to see those kind of details mean anything, I'm afraid.

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May 13, 2007, Rove: Bring me the head of John Batiste

That, of course, is retired Army General John Batiste, profiled here by the Grey Lady. Batiste, commander of over 22,000 soldiers in the First Infantry Division in Iraq, left the Army after that experience, and has been quite critical of the Bush Administration's handling of the war. After previously joining the (thereby safer) near unanimous chorus of calls for the ouster of former SecDef Rumsfeld (a chorus so loud that eventually, even George W. Bush heard it), the former General is now playing with fire, by appearing in an ad by VoteVets.Org that is (heavens) actually critical of Our SaviorTM, George W. Bush, and his conduct of The Great CrusadeTM, i.e., the Iraq war.

General Batiste is given some degree of prominence in Thomas Ricks' Fiasco, which I am (still) currently reading. In short, the professional military knew how to achieve goals... assuming that it had the right strategy, and the appropriate support to achieve that strategy. Strategy-- the big picture-- not the more quotidian matter of tactics.

The military, led by its short-sighted (and domestic political points obsessed) idiot civilian overlords, had neither strategy, nor willingness to provide resources to achieve it. There was no concern whatsoever given to what would happen after Iraq was invaded (Rumsfeld famously threatened to fire anyone who even talked about planning for the occupation). Key resources, whether enough personnel, or appropriate armor or equipment, were either removed or not available at key times, while at others, the politicos intervened to do exactly the wrong thing (see "Fallujah, Battles of").

Indeed, even I am less convinced than I was at one time about there being a grand conspiracy. Surely, felt I, the Bushmen couldn't possibly be so stupid and incompetent as to have brought about the results in Iraq unless it was intentional. Now, I am reasonaby convinced that they really actually were, and are, that stupid and incompetent, after all.

For calling the Bushmen on this fundamental lack of professionalism, General Batiste has not been criticized by active or retired members of the military (he has been receiving anonymous "traitor" e-mails from those who serve with the 101st Fighting Keyboarders but dare not actually put their own asses on the line)... and of late, he has been duly rewarded by having the feckless CBS network fire him as a military analyst.

Welcome to George W. Bush's America, where anything goes. Except integrity, competence, or criticizing the boss.

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May 11, 2007, Trial Lead Balloon

Although it is still not backing off from efforts to vilify the courageous men and women who have undertaken representation of the so-called "worst of the worst" now held at Guantanamo Bay, Cuba (around half of whom have already been released, and over 80 of the 380 or so left have been declared completely innocent by the military itself, and only ten of whom have ever been charged with anything)... the Justice Department withdrew its demands to limit attorneys to three visits with their clients.

In some sense, I take this as a personal affront, on any number of levels. First, I consider it an insult to the honor of the Department of Justice, at which I started my own career, that it is now called upon by a feckless and most un-American Government who has perverted the impartial administration of justice into a partisan political tool to now advocate for the instruments of tyranny. Second, I consider it an insult as a member of the legal profession that other attorneys who have undertaken the most honorable and noble aspect of the profession, to wit, the representation of the world's most unpopular, are being vilified on an ongoing basis on the direction of Karl Rove, a dishonorable waste of human life (and let's face it: this is just a continuation of the White House orchestrated Cully Stimson attacks started at the beginning of the year), as if attorneys who can't even take notes without having them reviewed in "a secure facility", and are completely run around by the military, and come to GTMO at all only at the absolute discretion of the military, can possibly be "a security risk". And finally, I consider the efforts to prevent attorneys from visiting their GTMO detained clients an insult almost personally directed at me. Quite frankly, attorneys representing Guantanamo detainees are just about the only window to our government's activities there, and I have not been the least bit reticent about shouting from that window, nor do I intend to be.

The fact is, as bad as things are at GTMO (and they are bad), things are worse at our government's other detention operations elsewhere, about which we know less, if anything. And this is precisely because the GTMO attorneys at least provide a window... a window that the government tried to slam shut.
Readers here know damned well that this is an underused window, at least in our so-called regular media, although this window remains available, and God damn it, I'm going to keep tapping at it, and continue seeing what answers we can get from it; interested readers can start with my recent interview with Brent Mickum and look at the other interviews linked to at the end of that post.

And all we can do is hope that the public relations pressure continues to build and continues to force the Government to retreat on these issues... pressure from Congressional hearings, to lobbying efforts, to you and I plain old just getting the damned word out and public attention focused on this (and boys and girls, let me tell you, they are watching us in the Muslim world... we sure as hell got public attention focused on this there, even as stateside we obsess over the latest t.v. bread and circuses singing or dancing contests, or gays, or immigrants, or whatever the powerful want us to obsess over... except, of course, for their own abuses of power.)

This present apparent retreat on lawyers' restrictions is not to be considered a victory in the Asymmetrical War being waged against the rule of law and American values by our so-called Government... this is simply a change in tactics, after tremendous pressure, largely from the legal profession itself (including from Barry Kamins, the President of the Association of the Bar of the City of New York.)

We all must realize that each day that Guantanamo and Bagram and Kandahar and Diego Garcia and floating prisons and ghost prisons and black prisons and every other legal black hole now operating in the world-wide American gulag archipelago continue to operate is a day where those who we fear most have the upper hand in winning hearts and minds.

And we've got to make sure that enough other people realize it too to make things start happening, in the hope against hope that it is not too late to regain our moral authority, without which we will not-- and cannot-- ever hope to win whatever it is we're supposed to be winning in "the global war on terror."

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May 9, 2007, Braveheart

Dick Cheney seems to be making up for what some might argue was a lack of personal courage in his younger days when he had "other priorities" than serving in his nation's war in Vietnam (by obtaining five deferments, some in legendary fashion). Cheney tops his trip to Afghanistan earlier this year (in which Bagram Airbase was attacked while he was there) with a trip to Baghdad (the U.S. Embassy was attacked while he was there).

Interestingly, while his second was off in Iraq, risking death either from insurgent attacks or from his own ticker giving out during insurgent attacks, the President threatened to veto another version of a House war funding bill, one that would extend funding only until the end of July, after which Congress would reassess whether "progress" was being made; in some sense, Cheney was trying to head this sort of thing off, by urging the Iraqis not to have parliament go away for two months in the summer, and otherwise, to take stabilizing the Iraqi security situation more seriously. Cheney seems to realize that his party is doomed if Iraq keeps going the way its going; Bush, as usual, is in his own world, thinking that if he pouts long enough, he'll get his way...

I will repeat what I said about Cheney last year, after the shooting incident in which it was revealed that he permitted himself to be in the middle of nowhere with armed civilians and alcohol... after just the plane ride to Afghanistan (aboard the Spirit of Strom Thurmond no less) nearly killed him, even if the Taliban did not... now he goes to Iraq? Why are we spending good money providing this man with security, when he clearly wants to show us that he is one tough hombre by constantly risking death?

OK: I'm convinced, Mr. Vice-President. You are one tough bastard... indeed, you are tougher than the whiny child that you answer to... while he struts around in faux-military-uniforms stateside (and can't even properly address the aftermath of a tornado), you are the real deal, going right to the heart of the action. You win, Sir. Yours is bigger.

Now please... PLEASE... come back to Washington, take your Lipitor, and try-- TRY not to kill yourself... As troubling a figure as you are, Sir, the thought of George W. Bush trying to act as President without you... is more than we can take.

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May 9, 2007, They say it's your birthday...

Happy birthday to TD Dad, who turns three score and ten today.

And happy birthday to TD-Niece IV, who turns two days old today.

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May 6, 2007, TD Blog Interview with Brent Mickum

Brent Mickum is an attorney with the firm of Spriggs & Hollingsworth in Washington, D.C. Mr. Mickum has represented one British citizen and two permanent residents of the United Kingdom who have been, or remain, detained at Guantanamo Bay (or “GTMO”), Cuba (after being apprehended in Africa): Martin Mubanga and Bisher al-Rawi, who have been released, and Jamil el-Banna who has not. Mr. Mickum has written a number of articles on the subject of his representation for the British and American press. On April 25 and 26, 2007, I had the privilege of interviewing Mr. Mickum by telephone. What follows are my interview notes, corrected as appropriate by Mr. Mickum.
The Talking Dog: Where you were on September 11th? Do you know where your clients were?
Brent Mickum: I was in the office. Generally, I get in early, typically around 6:30 a.m. I ride my bike to work, and, on that particular day, it proved to be fortuitous. I was able to get out of town much more quickly than most because the city was in total gridlock. Everyone was aware that the World Trade centers had been hit. But when the Pentagon was hit, all hell broke loose. Usually, it takes me about 40 minutes to bike home. That day, it took over an hour. I had called my wife and we had agreed that she would get my daughter from school, and I would pick up my son. As to my clients, all of them were living in and around London, England.
The Talking Dog: Please tell us the names of your clients detained at Guantanamo. Where are they currently (I understand one has just been released)? If you can tell me, what it is they were/are accused of? My understanding is that your clients put the ultimate lie to "captured on the battlefield". Can you tell us the circumstances of how they were picked up?
Brent Mickum: My clients’ names are Martin Mubanga, Bisher al-Rawi and Jamil el Banna. Jamil el Banna is still in custody. El Banna was arrested on precisely the same charges as my client Bisher al-Rawi, albeit fewer of them. The primary charge against Mr. El-Banna is that he "associated with a known Al Qaeda figure." That figure is a Muslim cleric named Abu Qatada. He also was charged with funneling money to al Qaeda, but that military agreed that it had no evidence against Mr. El-Banna. The purported "association" was that Jamil drove Abu Qatada's wife and child around to meetings that Abu Qatada attended. Those meetings were arranged by Bisher al-Rawi who, at a time, was working as an informant for MI-5. Accordingly, British authorities knew exactly where abu Qatada was and knew that Jamil was driving the wife and son to the meetings. When abu Qatada was arrested, British authorities called Jamil on his cell phone and asked him to come pick up the wife and children.
All three of my clients were arrested in Africa, thousands of miles from "the battlefield" in Afghanistan. Martin was transferred directly to Guantanamo. None had a weapon. None had any knowing association with Al Qaeda. None committed an act of violence. Indeed, there is no evidence in the record - and I have security clearance - that any of my clients even threatened violence against the United States or its coalition allies.
The Talking Dog: Can you tell me your impressions of your clients from meeting them? What contact have you had with their families (and what contact with released detainees)?

Brent Mickum: Martin is young man, with long dreadlocks. He was very fit and spoke with a heavy accent that I found difficult to understand. I only met him once at Guantanamo. He was released with the rest of the British citizens in early 2005.

I found him very affable, but he was the most cautious of the three. He had been through quite a lot. Because he was athletic and had been a kick-boxer, he was a natural target of many of the guards; he was frequently baited and beaten. He was frequently attacked by the so-called "immediate reaction force" or "IRF." His long dreadlocks also probably made him a target.
By the way, 60-Minutes-2, did on a story about a U.S. soldier named Sean Baker who was beaten so badly during an alleged IRF drill in which he posed as a prisoner, that he now has epilepsy, brain damage, and cannot be employed because of his disability.

I've talked to Martin's sister by telephone, and though I missed Martin the last time I was in the U.K., I have met and spoken with him through videoconferences that he attended.

Bisher is a good, gentle, genial man. He’s well educated and refined. Bisher was educated in the British public school system. I've met with his mother, his sister Omama, and his brother Wahab on many occasions, and I would say that my relationship with his family is quite. For my part, I enjoy their company very much. He has had a difficult time because he believed in American justice. He believed the system would work. But he was wrongly imprisoned for nearly 5 years. Considering what he has been through, he is remarkably resilient and is doing quite well. He spent a year in solitary confinement, during which time he was tortured daily by being exposed to serious temperature extremes. In addition, he was exposed to light 24 hours a day. He was allotted 15 sheets of toilet paper a day. Because he used some of the toilet paper to cover his eyes to try and sleep, his toilet paper was taken away. Consequently, he was deprived of toilet paper during most of the time he was in isolation. Once, when he used his prayer rug to cover himself to protect himself from the cold, his prayer rug was taken away. Cups and toilet paper are not considered "essential" at Guantanamo. Rather, they are "comfort items" that can be taken away at the whim of any guard. He also was deprived of reading materials.

Bisher is a man of principle who keeps his word and is loyal to his friends. He consistently refused to provide false testimony, even when he was offered his freedom to do so. At some point, he finally refused to continue to be interrogated further, answering the same inane questions over and over again. In reprisal, he suffered greatly, being tortured and left in isolation. I, and others, advised him to go back to his interrogations, but he refused.
In November or December, Bisher was in very bad shape, almost unable to comprehend his situation-- that's how badly abused he was. As a result, I published an article in Britain, describing his condition and treatment in detail. Whether the article prompted a response, I can’t say with any assurance, but the issue seemed to resonate at certain levels in U.K., and finally there was real movement to get him out.

Jamil was different than I expected. I expected a heavyset, clean-shaven man. Instead, Jamil appeared very fit, with a long beard and flowing grey hair. He is the father of five young children, the youngest of whom he has never seen.
His English has become much better over time. He was not fluent when I first met him. We just took time to get to know each other at first. In an effort to establish rapport, he challenged me to an arm wrestling match that lasted over two minutes. Although I was a pretty fair arm wrestler in my day, he beat me!
As I said, I was expecting a heavy diabetic man with jet-black hair. But Jamil had lost a great deal of weight. All prisoners at Guantanamo were starved. The military denies it, of course, but neither the military nor the Department of Defense has credibility left on the subject.

Almost without exception, everything the military has said about Guantanamo has been false and discredited. An excellent example involves three British citizens known as the Tipton Three and the release of a report in July 2004 about their treatment and torture. That report documented abuses like short shackling, the "IRFing", and the use of temperature extremes, light, and noise. The government denied all of it, claimed it was patently false. But in December 2004, the FBI released thousands of pages of documents from field agents who were on the ground in Guantanamo. Those documents establish that all of the information in the report was true. Despite the evidence, the Bush Administration continues to deny that any of it is true. By the way, two of the Tipton Three confessed to being in videotapes with Osama bin Lade in Afghanistan at a time when each was living and working in England. That tells you everything you need to know about Guantanamo.

In any event, all of my clients were very, very hungry. Each day, I would bring each food. I have never seen men eat with such reverence. Whatever I brought them—pizza, sandwiches, dates, chips, pastry, candy-- not a crumb was wasted. It was a very poignant experience watching men, who had been deprived for so long, eat. The government insists that it serves the prisoners dishes like rice pilaf and lemon chicken. Like everything else the military says, it is an arrant lie. I remember telling Bisher the story. He laughed, telling me that he could state definitively that he had never even tasted lemon the entire time he had been in Guantanamo.

In fact, I can tell you that early on, the military, knowing that the prisoners were starving, would induce blindfolded prisoners to eat pork and then tell them they had eaten pork to try to make them sick.

Jamil is very good and simple man. He is religious. He wants me to read the Koran because he worries about me! Believe me, none of my clients are zealots. All are innocent. All are good decent men.

The Talking Dog: I understand that you were among the very first attorneys to visit Guantanamo Bay's detention facility. Can you tell me your impressions of Guantanamo based on having traveled there?

Brent Mickum: I was the second habeas attorney allowed into the camps. I was supposed to be in the first group of attorneys, but two days before we were to travel, the government informed us that we would only be permitted one visit. Because, at that time, we had no idea what the charges against our clients were, Joe Margulies and I felt it would be malpractice per se to expend our only meeting without know the charges. Accordingly, I had to cancel my trip. During the early period, I was paying my own expenses, and I lost $500 because the flight to Guantanamo that was not refundable. Eventually, the military released public statements that we'd be permitted multiple visits, and the DOJ relented.

Guantanamo is a "50's-ish" kind of place. It is not modern by any means. It is extremely dry, but there is a severe beauty about the place. I can only recall rain on one occasion! There are iguanas walking around, along with banana rats and land crabs. The water is beautiful; you can walk right off the shore and still see fish in the blue Caribbean waters on the "visitors" side of the base.
To see the prisoners , you need to take a ferry to the prison side. There is a town there, with a McDonald’s, a KFC and other restaurants, a department store, barracks and soldiers' facilities. And, on the far side, is the prison.
As the second attorney down, things were very pleasant for me; my military escort was a great guy, and very helpful. I gave him a case of beer when I left. This has changed as more attorneys have come down; the soldiers are now unpleasant and occasionally combative. One is checked in and checked out at all points. There is a lot of unnecessary aggravation. In my opinion, the military is doing its best to make things unpleasant. For example, clients frequently "are not available" to meet. This is a real problem. You lose two full days traveling to Guantanamo (one day each way). On one of my last trips, I was at the base for three full days, but I was only permitted a total of 7 hours of visits with my clients over three days. So I have to say that the military is constantly interfering with our ability to work with our clients.

The Talking Dog: Let's turn to your clients' involvement with British intelligence, and its attempts to gain information of Islamic cleric "Abu Qatada". What is your understanding of that involvement, and how did it affect them at Guantanamo and elsewhere? Has the British government ever formally acknowledged its role in their detention?

Brent Mickum: Bisher worked with MI5, primarily as a translator and an intermediary. There is no explanation for why the British turned on him, although the evidence seems very strong that the CIA was desperate to implicate Muslim cleric Abu Qatada in terrorism or other wrongdoing.
Before he left the UK for the Gambia, MI5 met with Jamil to try to enlist him as an informant. Jamil was promised money to set him up in business in the Middle East. We have a field memo from MI5 that was released by the British government confirming this. We received this document – and others - just before the initiation of a lawsuit in the UK and just after I published my second article, revealing Bisher's involvement with MI5.

With respect to the United States, it appears that the CIA and military imprisoned Bisher and Jamil in an effort to suborn perjury against abu Qatada. I presume this was at the behest of the British. Both men were repeatedly called upon to lie and implicate Abu Qatada in wrongdoing. To both Bisher's and Jamil's credit, they declined to do so. To this day, no charges have been filed against abu Qatada.

The Talking Dog: Let's follow up on Abu Qatada, a bit; my understanding is that the British had held him at Belmarsh prison ("Britain's Guantanamo") in the UK, but he has since been released; further, one of your clients was acknowledged by the CSRT as having given money to charity, while the other, giving money to the same place on more or less the same evidence, was believed to have been aiding terrorism by a different CSRT... do I have that right? Your clients were detained because of information provided by the British as to their association with someone who has been released from custody by the British?

Brent Mickum: That's not exactly correct. Abu Qatada was a Muslim cleric, originally from Pakistan, preaching in the London area. He was arrested under Britain's first anti-terrorism law. When Britain’s House of Lords found that law unlawful, he was released from prison, but held under house arrest. Then new legislation was passed, and he was re-imprisoned. As I said before, he still has NEVER been charged with violation of any law.

Bisher was determined to be an enemy combatant on a number of charges involving his association with Abu Qatada, collecting funds at mosques and possessing a simple battery charger. The military never made any inquiry about the nature of the charges. It never attempted to determine if the charges were false. To the contrary, the procedures call for the military to assume that the charges were true. It would have been very easy to ask MI5 about Bisher's activities, because MI5 was at Guantanamo. Bisher was interviewed by MI5 in Guantanamo on at least six occasions. It would have been easy to determine that the battery charger was harmless because there was a court record of it. To my knowledge, no exculpatory evidence was ever examined or advanced on the part of any prisoner. But you should understand, the process was not about truth. It was result oriented. And there could be only one result.

Jamil was arrested and held on the same facts as Bisher. In the end, the only charge he faced was his attenuated association with Abu Qatada. Jamil drove abu Qatada’s wife and son to meetings where Bisher was doing translation for MI5. That’s all he ever did. When abu Qatada was first arrested, MI5 called Jamil to come pick up the wife and son who were there at the house.

We have been trying to get the British authorities to admit that they knew where Abu Qatada was at all times during the period when Jamil was driving his wife and child. This is important evidence to rebut the accusation that Jamil was "harboring" Abu Qatada. As for the other charges - possessing a battery charger and allegations that he collecting funds for charity at mosques - Jamil's combatant status review tribunal was presented with no evidence and, thus, exonerated him of those charges. Five years later, Jamil remains in prison because, at the behest of MI5, he drove a man’s wife and son back and forth.

The Talking Dog: Can you describe the abuses suffered by your clients, in the Gambia, in Afghanistan, and then at Guantanamo?

Brent Mickum: All of my clients have been abused and tortured, at every location. Martin was transferred straight from Zambia to Guantanamo.  He was subjected to temperature extremes, he was beaten terribly, he was kept in stress positions while chained and shackled. Interrogators wold stand on his hair and taunt him. All prisoners were kept in isolation for their first month at Guantanamo.  After that, Martin was frequently punished with more isolation.

With respect to Bisher and Jamil, in Gambia, they were transferred directly to the CIA. I man who identified himself as “Mr. Lee” indicated that he was with the CIA.  My clients were aware that CIA had been in contact with MI5 and that the British had been complicit in their detention.  The CIA told them repeatedly that MI5 had turned them over to the CIA. While in CIA custody in The Gambia, they were taken outside the City, shackled at all times, and Jamil frequently beaten.

Approximately one month later, Bisher and Jamil were rendered by the CIA aboard a Gulfstream numbered N-379T. As part of the process, their clothes were cut off, they were blindfolded, bound and put on the aircraft accompanied by CIA. From The Gambia, the flight refueled in Cairo and went on to Kabul, Afghanistan. There, Bisher and Jamil were taken to the infamous “dark prison”, , one of the early CIA black sites. There, they were thrown into dungeon-like underground cells. Encased in complete darkness, they were assaulted with a cacophony of music and noise that never abated. The noise let up briefly only one time during their imprisonment . When it did, Bisher heard Jamil call out to him, but he was too afraid to call back.  Bisher was chained to a wall, and had shackles on him at all times. They had only brackish water and were provided almost no food.

Jamil was beaten, kicked, and dragged around. He too was subjected to the cacophonous music as well, which included the sounds of jet airplanes and what he called “devil music” because it human screams and moans. They were imprisoned there for about 2 1/2 weeks.

Then they were transferred to Bagram. They were hooded, ear-muffed, chained, and taken out– and frequently beaten even though they were incapable of any resistance at this point. They were thrown bodily into the back of a truck where they thought they would die as the bodies of other prisoners were heaped upon them.

They were taken by helicopter to Bagram, where they were imprisoned and tortured for another 2 ½ months. Again, they were frequently beaten, deprived of sleep, subjected to extremes of temperature, and subjected to constant interrogations on only one subject: Abu Qatada! 

After that, they were taken to GTMO. The trip to Guantanamo was itself torture.  Prisoners were held in stress positions. If they moved, they were beaten. Imagine trying to maintain a single position for more than 20 hours without moving. Prisoners were starving and very disoriented. They had no water. Many were sick. Prisoners were beaten if they didn’t react immediately to verbal orders. Unfortunately, many prisoners did not understand English.

At GTMO, Jamil and Bisher were interrogated hundreds of times. As I’ve indicated, Bisher spent his last year in isolation.  During their imprisonment at Guantanamo, both men were subjected to stress positions, sleep deprivation, temperature extremes. Both spent time in isolation. Jamil was chained in stress positions. Once after Jamil’s family was threatened, his interrogator beat him for five minutes.

The Talking Dog: I understand you are a partner at a law firm in Washington with a number of private clients, and previously served with the Justice Department and Federal Trade Commission. Can you tell me your view of (now former) DOD official Charles "Cully" Stimson's recent remarks inviting corporate clients to retaliate against attorneys representing Guantanamo detainees? Has your overall practice been effected (either before or after Mr. Stimson's remarks) by your representations?  And of course, since here at “the talking dog” we are at the cutting edge, can you comment on the recent announcement of the government’s argument to the D.C. Circuit to restrict attorney’s access to Guantanamo detainees?
Brent Mickum: A lot of this is addressed in my recent Guardian article.   

To answer the first question, no my practice has not been affected by Mr. Stimson’s remarks.  Those remarks were unfortunate.  But Stimson did not make these remarks without vetting them with his superiors. At exactly the same time he made his remarks, the Wall Street Journal ran an op ed making exactly the same comments. So it is clear that this was an orchestrated event, an organized campaign and orchestrated maneuver by the White House to label the attorneys as the enemy. Cully Stimson was just the designated fall guy.

In the government’s filing, the attorneys are, once again, the fall guys – we are responsible for the hunger strikes, as if we were orchestrating them!  Imagine that for a moment: the military tortures and imprisons men for five years without charges, with no hope of any legal process, with no hope of release, and when they begin to rebel and do the only thing left to the – go on hunger strikes. And the government has the audacity to blame the attorneys. The detainees don’t feel they have any hope. You should know that rather than leaving the feeding tubes in prisoners, the military is now removing them between feedings to make it much more painful and uncomfortable.
Shortly after I made a recent appearance on C-Span, Bill Spriggs, the founding partner of my law firm, got an e-mail THANKING HIM for allowing me to do this work.
The Talking Dog: I understand that before the Rasul case allowed attorneys to visit GTMO, there were also hunger strikes and mass suicide attempts...
Brent Mickum:   There were hunger strikes before the attorneys were allowed in the camp, and clearly there were suicide attempts.  But the argument now made is that we are somehow compromising security!  This is utterly ridiculous. The problem at Guantanamo is that the men have no hope and there is no justice. Everything that this country stood for is absent at Guantanamo. The prison is really the only thing happening at Guantanamo. There are rarely, if ever more than five or six attorneys at the base. If the military can’t handle that, then are simply incompetent.
The Talking Dog: I understand that you wrote to your clients asking them not to participate in the military's combatant status review tribunals (CSRTs), though the letters were mysteriously delivered to your clients one day after they participated, though before you visited them. Can you tell me what happened at those CSRTs, and if the government has ever owned up to reading your ordinarily privileged mail?
Brent Mickum: One of the things the government wants to do is to permit the military to read– rather than just inspect for contraband– lawyer-client mail.  In our case, there is no question whatsoever that the military opened and read my mail to my clients. The dates of each of my clients’ CSRTs was different, and yet in each case, my letter mysteriously arrived one day after their CSRTs, although I sent them all at exactly the same time. 

Bisher pointed out this out to his CSRT, which had been unaware that his mail had been read and not delivered.. Still, it didn’t make any difference.
The fact is, the military wanted to game this. They wanted the detainees to participate in the CSRTs to implicate themselves or others.  Of course the Government will not own up to doing this. But everyone who has seen the CSRT process has called it a sham. The last time anyone in the military uttered anything close to the truth was in 2004 when Brigadier General Lucente said that 90% of the prisoners at Guantanamo didn’t belong there, had no connection to terrorism, and had no intelligence value. 
The Talking Dog: Are you aware of any efforts by the British to obtain the release of their remaining residents held at Guantanamo? What efforts have you undertaken with respect to lobby the British government to seek release of its residents?

Brent Mickum: I continue to try to publish pieces in the United Kingdom to keep these issues in the public eye there.  The British are much more sensitive to these issues than Americans. But I’m happy to say that Americans finally seem to be coming around.  For a long time, people here bought into the Administration’s “worst of the worst” rhetoric.  The Administration has been very clever, it keep repeating the same line over and over again. Sadly many people came to believe it. For example, consider weapons of mass destruction in Iraq– many people STILL think that Iraq had weapons of mass destruction. That’s because the Bush Administration repeated so many times. It just establishes the point that you have to question everything the Administration says. Frankly, that’s sad.
I am involved in an ongoing dialog to try to get the U.K. government to accept the resident back.  Its present position is that if it interceded on behalf of the residents at Guantanamo, it would set an adverse precedent that would require the UK to intercede on behalf of residents all over the world who may be detained. The government claims it could be required to intervene on behalf of thousands upon thousands of people. I don’t buy the argument, but that is the excuse they are using, and they’re sticking to it..
Some have suggested that a House of Lords, which is the U.K.’s highest court, is expected to render a decision in October that may require the U.K. government intercede on behalf of Jamil and Omar Deghayes. Family members who are British citizens brought the suit on their behalf.  What the House of Lords does remains to be seen, but it is thought that the Law Lords may reverse the British government’s current position to some extent. Depending on the relief afforded by the Law Lords, it seems clear that an appeal to the European Court of Human Rights will result in a reversal of present policy.
Of course, at this point, time is of the essence.  Guantanamo conditions are growing steadily worse. If the American government succeeds in restricting lawyers, conditions will become even worse still.  The American military gets no credit whatsoever on this point– they will get away with whatever they can, as they have before.
So.... I am trying to keep up a dialog with the British and establish a framework for the repatriation of Jamil and the other residents. While the UK takes the position that some of the British residents now at GTMO were not legal British residents, that is not Jamil’s case: he has refugee status.  I am not trying to preclude other detainees’ rights in any way– but that argument should not be used as a crutch or an excuse to block repatriation of Britain’s genuine legal residents.  The U.K. government, in my view, has acted shamefully: while it calls for the closure of the camps, it does little or nothing to take its people back,
Now, some of this can be laid back at the feet of the Americans, who are demanding unreasonable conditions on the British such as 24 hour post release monitoring. The Americans are simply trying to cover their ass. None of the British residents pose any threat whatsoever– our own military doesn’t think they’re a threat. 

I learned a lot when negotiating regarding Bisher’s release. You go through a dance.  The US would demand surveillance based on accusations that Bisher had done something like take terrorist training in Bosnia and Afghanistan. But I was able to provide evidence that demonstrated that the charges were hogwash. For example, we were able to prove that, although the US alleged he was elsewhere, Bisher hadn’t left the U.K. since 1998.  So the military’s allegations were utterly false. Gradually, we whittled down the restrictions for Bisher’s release. Ultimately he was released without any charges. He had to register his address. If he wants to travel abroad, he has to let authorities know where he intends to go. We have to do that in this country.
The Talking Dog: Do you have a view as to a possible "exit strategy" with respect to Guantanamo, either care of the Supreme Court (such as its recent refusal to grant certiorari review in Boumediene) or Congress perhaps... or do you believe that as long as George W. Bush is President, the facility will remain open (albeit perhaps with a slowly declining number of individuals held)?

Brent Mickum That’s actually a hard question.  I’m certainly disappointed in the Supreme Court.  But in the recent case, Justices Kennedy and Stevens did us a favor.  If the Court had taken the case at this time, it would have later turned down the appeal for failure to exhaust the remedies available under the Detainee Treatment Act. Of course, that remedy – a petition to the D.C. Circuit– is a useless task. The petition of the CSRTs will go before the same court that the Supreme Court has reversed twice on detainee issues. It is the same court that, despite the Supreme Court’s clear holdings to the contrary in Rasul and Hamdan cases, once again ruled that aliens at Guantanamo have no rights at all! 

But what is very interesting is that the government’s latest maneuver of trying to shut out lawyers offers the possibility of asserting jurisdiction before the Supreme Court on that issue.  Justice Stevens made it very clear in his opinion denying certiorari that there were other avenues that would allow the court to assert jurisdiction if detainees were prevented meaningful relief. We’ll see.
Just today [April 26, 2007] I filed a DTA petition on Jamil’s behalf.  The petition describes in some detail what happened to Jamil in American custody.  The D.C. Circuit will likely summarily deny his DTA petition, of course.  But in doing so, the Court will have to ignore some grim factual evidence that the US government has engaged in torture, kidnapping, and the imprisonment of innocent men for years without any legal recourse. We know that Jamil was rendered. We know the exact plane that rendered him. We know that the only evidence against Jamil is that he drove Abu Qatada’s wife and child around in the UK at a time when the UK knew exactly where Abu Qatada was!
While we would ask that Bisher be permitted to testify on Jamil’s behalf, we would expect the US to deny Bisher entry into the US. We also intend to produce affidavits from Bisher and Jamil’s solicitor in Britain, Gareth Peirce. We hope to produce evidence that the British government knew where Abu Qatada was, that Bisher was serving as an intermediary on behalf of MI5, that Bisher was seeing abu Qatada with government approval, and that MI5 knew exactly where Abu Qatada was!  We will produce evidence that MI5 attempted to recruit Jamil to work for it. When he refused, Jamil was thrown to the wolves.
Bisher and Jamil love England.  Jamil has told me that he has told other prisoners that notwithstanding how badly he has been treated, other prisoners should consider the UK for asylum!  He still has a longstanding love and respect for England. Certainly his feelings about the United States and our system of justice are markedly diminished.
The Talking Dog: Let me now ask my lawyer’s weasel catch-all question... is there anything else I should have asked you but didn't, or anything else my readers and the public need to know on these subjects?
Brent Mickum: People need to know that the number of men who are really innocent at Guantanamo is extraordinarily high. Leaving aside the recently transferred 14 so-called high value detainees, the military determined that only 8% of the prisoners are classified by our government as Al Qaeda or Taliban fighters.  Only 5% were captured by American forces.  86% were turned over for bounties.  Fifty five percent were found not to have committed any hostile acts against the United States or its coalition partners.  This is very different from what the Administration has said.

In many cases, military tribunals found prisoners to be enemy combatants on the basis of their affiliation with 72 different terrorist organizations. The only problem with such a finding is that 52 of the organizations, 72% of the total, do not even appear on the Patriot Act Terrorist Exclusion List or state Department exclusion lists. Members of 64 of the 72 groups identified by the military as terrorists, 89% of the total, would be permitted entry into the United States.

The head of Afghanistan’s Reconciliation Commission is on record saying that all 83 Afghans who were repatriated were innocent and ended up at Guantanamo because of tribal or personal rivalries. A senior official in the Pakistani Interior Ministry has said that investigators determined 67 of 70 prisoners repatriated to Pakistan were sold for bounties by Afghan warlords who invented the links to al Qaeda. He is quoted as saying, “we consider them innocent.” Twenty-nine detainees repatriated to Britain, Spain, Germany Russia, Australia, Turkey, Denmark, Bahrain, and Maldives were freed, some within hours after being sent home for “continued detention.” All of the Saudis who have been repatriated, with the exception of the most-recently released group, have been freed.
The Bush government cannot have it both ways. Its imperial hubris and its preternatural aversion to the truth have finally brought it down. No one now believes the Administration, whether it’s about Guantanamo or Alberto Gonzales firing U.S. Attorneys. People have simply turned the administration off. The congress and the press are no longer giving the administration a pass. 
At this point it is imperative that people know the truth, and witnesses are coming out of the woodwork. After my recent C-Span appearance, someone called me and spoke to me at length, telling me (without giving his name) that he was a guard at the GTMO camps. He told me that he and other guards were instructed to brutalize prisoners. He confirmed that water-boarding, which he called “drown-proofing” took place. This individual knew extensive details of the camp layout and the names of military personnel. Eventually, the full story will be released and peopled will be shocked at the extent of the depravity. 
Finally, let me say this, the press that is real reason that anyone has been released.  It is the collective, conveyed outrage of the civilized world that is responsible for turning around policy. It certainly is not the largesse of the Bush Administration or the military. This country’s judicial system has been sullied. All our legal efforts have been stymied.  The judiciary should be ashamed.  This points up how wrong the politicization of the judiciary is. Plenty of countries have an executive branch and a congress or parliament. But what makes this country distinctive and so great is an independent judiciary, with sound and ethical people in the position of judges.  This has changed dramatically under Bush. We need to reestablish it.
I hope politicians in the future will take heed of this...  Members of Congress– even Republicans- are incredibly disturbed about the revelations about how things are done in the Justice Department, which was supposed to be impartial.  Gonzales resigning would be a step in the right direction, but only a small step in undoing just how disturbing things have become.
The Talking Dog: I join all my readers in thanking Mr. Mickum for being so generous with his time, and for providing us with such an extensive and informative interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys 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 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, and with journalist and author David Rose on Guantanamo related issues to be of interest.

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May 5, 2007, You go to war with the Army you have

Such is the famous response of former SecDef Rumsfeld when pressed by a deployed soldier about why he and so many like him were supplied with inadequate body and vehicle armor, resulting in countless avoidable combat deaths and injuries. It seems that besides a cavalier attitude toward adequately equipping troops in the field (as opposed to lining the pockets of Halliburton, Bechtel, Blackwater, et al.), the former SecDef's cavalier attitude toward treating local populaces with dignity and respect and with humanely treating those captured has, in turn, also filtered down to the troops, with some pretty alarming survey results as documented in this WaPo piece. While there may well have been a "few bad apples" responsible for the abuses on the ground in Iraq, it seems clear that those "bad apples" had senior positions in the Pentagon.

Anyway... some of the alarming results of the internal survey conducted by the Army:

More than one-third of U.S. soldiers in Iraq surveyed by the Army said they believe torture should be allowed if it helps gather important information about insurgents, the Pentagon disclosed yesterday. Four in 10 said they approve of such illegal abuse if it would save the life of a fellow soldier.

In addition, about two-thirds of Marines and half the Army troops surveyed said they would not report a team member for mistreating a civilian or for destroying civilian property unnecessarily. "Less than half of Soldiers and Marines believed that non-combatants should be treated with dignity and respect," the Army report stated.

About 10 percent of the 1,767 troops in the official survey -- conducted in Iraq last fall -- reported that they had mistreated civilians in Iraq, such as kicking them or needlessly damaging their possessions.

The WaPo piece is by Thomas Ricks and Ann Scott Tyson; I am reading Mr. Ricks' book "Fiasco" right now, and Ricks observes that this general prevailing attitude-- that the local populace is the battlefield, or worse, the enemy, rather than what it really is, the prize, is the confusion between strategy (we don't really have one) and tactics... that in turn filters down to the troops leading to bad results. In a word, this attitude may be the leading cause of the failure of the mission in Iraq.

The mission of a counter-insurgency is to win over a populace to your side; such a mission can only fail if it foolishly follows the rudderless twits on top who mutter crap like "bring it on" and "dissent is treason", etc., and general and field grade officers start acting on this, and employ counter-productive tactics such as mass round-ups of all local men (or taking family members of those wanted hostage), or wantonly blowing up houses, or having convoys take unprovoked pot-shots at passing locals (while running them off the road), or responding to rifle shots with mortars, or numerous other heavy-handed tactics guaranteed to turn a potentially friendly local populace into a hostile one... forgetting that killing 10 "insurgents" does no long term good if it only generates the creation of 50 more.

Anyway, General David Petraeus understands this sort of thing, which is why his theater of operations was regarded as one of the success stories. The only problem is that Petraeus has been put in charge of things a little late; a surgical team of Drs. Barnard, DeBakey, Jarvik, Welby, Kildare and Hawkeye Pierce won't do much good if the patient has already been dead for two years...

Just something else to think about. The good news is that the Army is at least proactive enough to be asking the right questions (albeit a little too late). The bad news is that our own attitudes may ultimately be the biggest impediment to winning (whatever that is). But hey... why should we listen to experts about this too when we just know we know better?

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May 4, 2007, We'll always have Paris

Paris Hilton, that is, who takes back the headlines with a 45-day jail sentence for violating the terms of her probation for wreckless driving.

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May 2, 2007, The Other Black Hole

Many of you know that I seem to spend an inordinate amount of time discussing matters of American detention policy with an emphasis on the tropical resort we have consigned our military to run at the Eastern tip of Cuba; I do this because that particular facility, from an information standpoint, is relatively accessible. The guests of that resort have attorneys who have e-mail addresses and phone numbers and are sometimes willing to talk to me; some former soldiers have written books, and journalists have visited from time to time.

Regular readers are well aware that the United States also maintains a network of similar gulags legal black holes around the world (an archipelago, if you will) with Guantanamo Bay (GTMO) simply being the best known (and physically the closest). Eliza Griswold, writing in TNR online, gives us this account of one of the largest of these black holes, our facility at an American run air-base in Bagram, Afghanistan.

Of course, you know this from, for example, our interview with Stephen Grey, a journalist who has tracked and studied this network of legal black-holes, or of course, our interviews with Shafiq Rasul or Moazzam Begg, both of whom were early guests at Bagram and other black holes, as well as GTMO.

One interesting development seems to be that after over five years, the military seems to have taken to realizing that Bagram (and GTMO for that matter) is unlikely to be a "temporary" detention facility, but instead intended to remain open as long as George W. Bush is President... or far, far longer. And that as nasty a place as GTMO is... Bagram makes it look nice by comparison. And again... at least we know about Bagram's existence (even if not, exactly, who we are holding there.)

Understand, of course, that not a single person at Bagram has ever been tried or found guilty of anything... unlike Guantanamo, where a single person has pleaded guilty to something (albeit a crime that didn't exist when he was apprehended, and which, after over five years detained, carried a nine-month sentence.) Nonetheless, quite a few guests have apparently been held at Bagram for years, with little, if any, hope of release.

Just something else to think about, as we ponder wtf has happened to our country.

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May 1, 2007, Bring it on

I'm kind of disappointed by the mealy-mouthed comments coming from Democratic leaders prior to what was inevitable, to wit, the President vetoed the Iraq war funding bill that contained time-tables for troop withdrawals. E-mails I keep getting from John Edwards suggest that the Democrats continue to send the President the same bill, until he signs it.

My view is that the Democrats should now move on to their legislative priorities, minimum wage increases, expanding health insurance to the working poor and all children, restoring low income housing subsidies cut by the President's mean-spiritedness, combatting global warming, and... you know. An entirely progressive agenda.

The war funding? Well, the President vetoed it, and the Democrats don't have the votes to override the veto. Fine then. In this case, vetoes work two ways: each house of Congress also carries a veto... this is why we hadn't had a minimum wage increase in the last six years of the Clinton Administration: the Republican majorities simply refused to bring the measures to the floor, and stymied any efforts that got around that refusal.

So, that would be my suggestion: do nothing further.

At this point, the President is at 28% approval ratings, and declining fast. If he wants to play from his extraordinarily weak hand... let him. There's nothing to negotiate, here. The people elected Democratic majorities to end this war. One way or another. [BTW... my view is that it is not automatic that the Iraqi situation is a foregone loser... but there is strong evidence we are making things worse for the Iraqi people by staying, and certainly, any effort where George W. Bush is the ultimate decision-maker is pretty much per se doomed to failure.]

So... that's it. The Democrats gave the President what he wanted, with enough loopholes to fly a C-130 through. But it was not good enough for the five-year old in chief.

Fine, then, Mr. President. You don't like the bill you're served, then you'll go to bed with no bill at all. Good night.

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