The Talking Dog

February 28, 2009, Baby steps

While it hasn't exactly been a steady and forward march to restoration of the Constitution by the nascent Obama Administration, when it does something of note worthy of our praise, it will receive it. Today was such a day when the Obama Administration made the decision to transfer Saleh Al-Marri out of military custody and into the civilian justice system. (Al Marri's wiki is here, for background). A similar decision was made with respect to former "dirty-bomb" suspect Jose Padilla on the eve of papers due in his Supreme Court case... pretty much the exact same scenario as with Al-Marri, and, as one of Al-Marri's attorneys Jonathan Hafetz told us when we interiewed him, this is because Al-Marri's case presents the same Padilla issues of a government asserting the right to trash the entire bill of rights when it suits it as long as it magically invokes the word "terrrrrrorism":

The Talking Dog: Is it not the case that this is a still-live case presenting virtually the identical issue as Padilla (which the Supreme Court just ducked)?

Jonathan Hafetz: Certainly, the issue is very much live, and presents a danger to us all insofar as the government is asserting the right to strip any one of us of all due process rights and constitutional protections. So yes, that is definitely still the case– Al-Marri’s immigration status as opposed to citizenship doesn’t change that.

While I would certainly like the loathsome abomination of a decision out of the Fourth Circuit Kangaroo Court of Appeals vacated, the Supreme Court (and the Obama Administration) may prefer, as occurred with Padilla, to avoid the question, thereby permitting the future precedent of any President (maybe even this one) picking up anyone he likes, citizen or alien alike, stateside or abroad alike, and throwing said person in a dungeon, potentially forever, period (as long as the holy words "national security" and "terrrrrrorism" are uttered.)

Well, we'll take what we can get, and the decision to afford Al-Marri a civilian trial is, at least, something.

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February 27, 2009, The Republic Strikes Back... At Least A Little

In the federal Ninth Circuit Court of Appeals, the court handed the Bush Obama Administration a set-back in its assertion of state-secrets privileges to try to stymie a suit brought by an Oregon-based Islamic charity over illegal wire-tapping of it. The Obama Administration asked for a stay to further consider its privilege assertion, but after its recent backsliding into imperial mode in the Binyam Mohammed torture case against Boeing subsidiary Jeppesen, it appears that the Ninth Circuit was having no more of it from the the Bush Obama Administration.

Admittedly, much of the case still presents an uphill climb for the plaintiff, who must still demonstrate that they have standing to bring the suit, i.e., that they were actually injured, or that they were actually spied upon... but the Ninth Circuit has at least ruled that they can try-- that the mere assertion of "national security" is no longer a per se magical incantation that can shut down a lawsuit without further thought.

This is the kind of loss to the Obama Administration that the rest of us can consider a win toward, hopefully, preserving our Constitutional rights.

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February 26, 2009, Get your kicks in Camp Six?

Reuters reports that a lawyer for Guantanamo detainees contends that day-to-day abuse of prisoners (beatings, force-feedings and the like) has actually increased since President Obama took office. Sayeth Reuters:

Abuses began to pick up in December after Obama was elected, human rights lawyer Ahmed Ghappour told Reuters. He cited beatings, the dislocation of limbs, spraying of pepper spray into closed cells, applying pepper spray to toilet paper and over-forcefeeding detainees who are on hunger strike.

The Pentagon said on Monday that it had received renewed reports of prisoner abuse during a recent review of conditions at Guantanamo, but had concluded that all prisoners were being kept in accordance with the Geneva Conventions.

"According to my clients, there has been a ramping up in abuse since President Obama was inaugurated," said Ghappour, a British-American lawyer with Reprieve, a legal charity that represents 31 detainees at Guantanamo.

"If one was to use one's imagination, (one) could say that these traumatised, and for lack of a better word barbaric, guards were just basically trying to get their kicks in right now for fear that they won't be able to later," he said.

"Certainly in my experience there have been many, many more reported incidents of abuse since the inauguration," added Ghappour, who has visited Guantanamo six times since late September and based his comments on his own observations and conversations with both prisoners and guards.

Maybe the guards need a hug. Or maybe they should have their own "movie-nights," as observed by Candace, part of a new superficial Potemkin Village "improvement" to tell us rubes back home that GTMO is "Geneva compliant," as if (1) most of the rubes here even care and (2) the Pentagon, which is charged with reporting on its own compliance, can be trusted to do so.

Candace suggests moving into sort of a healing and reconciliation mode, at least for a while, as Candace has recognized at least some quite real improvements, that, while not "Geneva compliant," have, at least, made the place at least somewhat less horrible than it had been before.

The perfect remains the enemy of the good; more activism and "community organizing" will be needed, and we cannot let up now, now that we have a President finally in office who is actually capable of paying attention to such things . One great step might be to sign Senator Leahy's petition to demand a truth and reconciliation commission. Another might be to join the ACLU's efforts to demand that independent human rights groups have meaningful access to inspect GTMO, to ensure that vaunted transparency that the President talked about. Because there are those of us who get our kicks by trying to restore our nation's moral authority and compliance with the rule of law.

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February 24, 2009, The big speech

The President addressed a joint session of Congress and gave his remarks concerning the budget he will be presenting shortly. Not sure what to think of this one; it seemed disjointed, especially from a rhetorical master like President Obama.

This could be the nature of the current crisis. Still, it might have been more "confidence building" if more specifics ($__billion to re-build roads, $___ billion to ensure that schools are adequately funded, etc.) made there way in there (there were some specifics, like $15 billion a year in energy research)... but the stimulus bill was one of the biggest progressive packages in decades, and the need for Village inside-the-Beltway-inside-baseball to avoid saying it... seems troubling. We're operating from the other guys' frame: that the Government doing good things for people is something to be apologized for.

Oh well. The President showed his usual eloquence, and the usual suspects applauded and booed, and Bobby Jindal (doing the Republican response) sounds (Mrs. TD's spot-on observation) like Kenneth the page from 30 Rock. (And Jindal's message sounds like "Hey look, me, a dark-skinned South Asian-American gets to be the standard bearer of the racist/cracker party! Woo hoo! Ain't America great!")

Oh well. The President is big on theme speeches-- the "race speech", for example, and now, he has "the economy speech." At this point, all Americans should be hoping that whatever the President is pitching will be effective at first stabilizing, and then restoring, the health of the economy. [And, as usual, the Republican jihad, led by its spiritual leader Rush Limbaugh will be hoping for the contrary.]

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February 23, 2009, Going All Medieval...

After seven years of some of the most horrifying torture I have ever heard of (besides the usual beating, sleep deprivation, starvation and so forth, Binyam was treated to years in cold dark rooms while his "interrogations' included repeatedly slicing open his penis in a Moroccan dungeon) at the behest of the United States government (or at other times, committed by the CIA or American military torturers interrogators...) British resident/Ethiopian national Binyam Mohamed has finally been released from Guantanamo Bay and is now home in Britain. Binyam had issued a statement calling the treatment he received "Medieval". That's.... pretty euphemistic in his case.

The purpose of the Binyam's torture was supposedly "the ticking bomb scenario"... the same nonsensical and non-existent "dirty bomb" plot used to justify the illegal and unconscionable in camera detention of (U.S. citizen) Jose Padilla... except, of course, that the reality of "the ticking bomb scenario" is that the prisoner will simply shout out anything to try to make the torture stop, while the torturers interrogators run around like madmen trying to follow up "the leads"... while, in fact, proper and effective interrogation techniques (hint: they don't involve torture, or coercion... but instead involve the far less "ready-for-prime-time-on-the-Fox-network" wait for it... rapport building) might have gotten actual truthful answers.

In the end, in this case, torture accomplished what it always accomplishes: exactly nothing... except risking the destruction not only of Binyam, not only of those who tortured him and assisted in it, but in the very fabric of our so-called civilized society.

And ironically, of course, it was Binyam's own case against Boeing subsidiary Jeppeson (literally, the travel agent for torture) that was the subject of the disappointing assertion of "state secrets" by the Obama Administration I recently noted... It was also the subject of a hasty British court ruling essentially closing down Binyam's case in Britain seeking to release documents evidencing his torture under the apparent threat of damaging the U.S.-U.K. intelligence sharing relationship.

All of this only serves to protect Binyam's torturers and those who directed the torture (presumably so that the Obama Administration can be spared the troublesome notion of holding the Bush Administration accountable for its more egregious actions).

The ACLU's blog notes some of that organization's early disappointments with the Obama Admininistration, a sentiment I share. So let me just say it: notwithstanding that I supported Barack Obama's candidacy, including working for it on Election Day, indeed, that Barack is my college classmate, and that I believe him to be a vast improvement over both the prior government and his electoral opponent... the President is still capable of disappointing on a variety of issues, and on this core issue on which nothing short of the nation's soul is at stake, the disappointment will go down particularly hard, I'm afraid. It's still early, of course, and I do fully expect that many things will vastly improve, while others will no doubt still be disappointing. That's life; Barack himself would tell us that the perfect is the enemy of the good. And today, at least...

The good news is that the Obama Administration did what the Bush Administration mean-spiritedly refused to do, and finally sent Binyam Mohamad home to Britain. For which we can all be grateful.

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February 20, 2009, TD Blog Interview with Darrel Vandeveld

Darrel Vandeveld is an attorney and former military officer, who, in civilian life is a prosecuting attorney in Erie, PA. In the military, he attained the rank of Lt. Col. in the Army Reserve, serving, among other places, in Bosnia, Iraq, Afghanistan and Africa, as well as serving as a senior prosecutor for the military commissions prosecuting Guantanamo detainees. Last year, he became the seventh attorney to resign as a prosecutor from the military commissions. On February 20, 2009, I had the privilege of interviewing Col. Vandeveld by e-mail exchange.

The Talking Dog: For various reasons (including perhaps my own proximity both then and now to "Ground Zero"), the customary first question of talking dog interviews is "where were you on 11 Sept. 2001?"

Darrel Vandeveld: When American Airlines Flight 11 struck the north WTC tower, I happened to be working in my office in the placid Northwestern Pennsylvania city of Erie. Within minutes of the first collision, a secretary burst into my office and told me excitedly what had just been reported on one of the network television morning shows. My entire office spent the next hour watching in horror as the subsequent attacks and their aftermath unfolded. We then closed the office for the day, and, along with the rest of the world, remained transfixed as the extent of the attacks became clearer. I knew that day that my life would never be the same again.

The Talking Dog: I understand that in civilian life, you work as an attorney and that you reside in the Erie, PA area. My limited knowledge of Erie is that also from that area are former governor and Homeland Security Secretary Tom Ridge and General Michael Dunlavey, the former commander of Joint Task Force (JTF) 170, created in February 2002. Gen. Dunlavey was placed in charge of interrogating detainees transferred to what was then the only prison in operation in Guantanamo, Camp X-Ray. Gen. Dunlavey is a trial court judge in Erie County in his civilian life. Have you had occasion, either before, during or since your involvement with the Guantanamo prosecutions to speak with Gen. Dunlavey, and if so, what can you tell us about your conversation or conversations?

Darrel Vandeveld:In February 2002, Secretary of Defense Donald Rumsfeld appointed Major General Dunlavey, now retired from the Army Reserve, as the commander of the joint operations unit that had been given the mission of interrogating detainees transferred to Guantanamo in the early stages of the October, 2001 U.S. invasion of Afghanistan. Gen. Dunlavey was and is a well-known figure in the Erie community, and his military background, focused on military intelligence and intelligence interrogations, began with his service in the Viet Nam War. According to what I’ve been told, Gen. Dunlavey had conducted thousands of interrogations in the course of his career, and the Army obviously thought well enough of his abilities to promote him to the rank of two-star general, a rarity in the Army Reserve. Although I thought Gen. Dunlavey was highly qualified for the position, it struck me as unusual that in the first attack on U.S. soil since Pearl Harbor, that the active duty military would choose a part-time, reserve officer to command one of the most important missions in the nascent struggle against terrorists – usually the active Army hoards such positions for their own. I was heartened that Gen. Dunlavey had been selected for the mission, not only because of his military experience, but also because of his legal training and reputation for fairness. Before 2001, I had met Gen. Dunlavey several times at social events, had always been impressed by his decisiveness and obvious intelligence, and hence voted for him when he ran for judge. He seemed qualified by experience and judgment to fill the role he had been assigned.

After February 2002, Gen. Dunlavey’s military duties kept him away from Erie for long periods of time, as did my own, and so I never had the opportunity to speak to him about the so-called Global War on Terrorism or his own service. Since returning to Erie late last year, I have avoided contacting Judge Dunlavey because of the controversies that surround us both. I’ve read extensively about Judge Dunlavey’s service at Guantanamo, and believe that he acted reasonably and honorably during a period of intense political and social pressure, in a very demanding position. Weaker personalities might have succumbed to some of the obviously inhumane directives he received from the Office of the Secretary of Defense, so I personally give Judge Dunlavey great credit for limiting what we now know were serious excesses and misconduct concerning the treatment of the detainees. That Defense Secretary Rumsfeld essentially relieved Gen. Dunlavey of command and replaced him with Major General Geoffrey Miller of Abu Ghraib infamy, stands as a silent testament to Gen. Dunlavey’s moral courage and strong sense of restraint. I should add that I have not appeared before Judge Dunlavey since returning to Erie, do not have any cases pending before him, and do not expect to in the future, since he is currently assigned to the Juvenile Division of the court, an area in which I do not practice.

The Talking Dog: My understanding is that you have described yourself as fitting the classic model of the rock-ribbed, God-fearing military man. And in this model, my understanding is that, at least before your assignment to the Guantanamo prosecutions, you believed that, in fact, the United States was holding a bunch of hardened fighters and terrorists, and you meant to prosecute as many as you could and send them to jail for as long as possible (and at one time, were associated with at least 6 different GTMO prosecutions). How have your personal observations and experiences affected your political world-view overall (if it has), and in particular, your view of what the United States government is doing at Guantanamo Bay? If you can answer this... and I understand you are a devout Catholic and had sought the advice of a Jesuit priest and peace activist named John Dear, who gave you the response "quit GTMO" to your expression of personal misgivings about your prosecution work... has your religious faith been shaken in any way by your experiences... or has it been strengthened and reinforced?

Darrel Vandeveld: When I left Erie for Bosnia in November 2001, I harbored the views of most Americans: I was beyond angry that Americans had been killed in a sneak attack, I viewed al Qaeda as a manifestation of pure evil, and I was determined to do whatever I could to contribute to their wholesale, final destruction. Despite my Christian beliefs, I hungered for revenge and retribution against Osama bin Laden and his criminal organization, and I made little distinction between al Qaeda and its accomplices, the Taliban. I distinctly recall feeling a keen sense of disappointment that I had not been able to secure a position in the invasion of Afghanistan. I accepted, without question, the cynical notion that sometimes brutality has to be met with brutality, and I was prepared to put this notion into practice if the Army ever gave me the opportunity. My motivation was entirely apolitical.

Much has been made of my Catholic faith since I left the Commissions, because I cited, almost in passing, that my professional, ethical qualms over the conduct of the Commissions and the treatment of the detainees led me to consult with a Jesuit priest before I asked to be relieved of my duties as a prosecutor at the Commissions. However, the claim that I am a “devout” Catholic is so self-aggrandizing and lacking in humility that I sometimes regret characterizing myself as a “resolute” Catholic (that is, one convinced of the truth of the Catholic Church’s claims), as opposed to “devout” (the adjective the media has adopted, which I view as implying a fidelity to the church’s teachings and degree of personal holiness that I will be the first to admit I do not possess.) In fact, I’ve always considered myself to be a rationalist, and for many years – had I given the matter much thought – I would have characterized myself as an atheist. Over the past decade or so, however, without any real effort on my part, I gradually came to embrace the Catholic faith and made Kierkegaard’s “leap of faith,” from which I have never retreated. If anything, my study of works such as N.T. Wright’s “The Resurrection of the Son of God” has reinforced what I’ve accepted as matters of faith. Likewise, my moral misgivings while at the Commissions led me to an intense re-examination of the Gospels, Biblical exegesis, and various theological tracts on Christian morality and, in particular, the Just War theory. From this study and from my experiences, my religious convictions are better informed and more deeply held than ever. Certainly I found solace in the church as I struggled to act on principles I knew to be morally and ethically correct.

Getting back to the Commissions, at the time I joined them, I had served in three different combat zones, and had been on active duty for four of the preceding six years. In Iraq, I participated in dozens upon dozens of missions “outside the wire,” i.e., outside the relatively safe confines of the massive U.S. bases there. Some of the events occurring on these missions stripped me of any illusions about the supposed glamour of war. I have had friends killed in action, friends who committed suicide, and another friend, one of my best friends in the world, gravely wounded in a rocket attack. Whatever romantic impressions I’d harbored about the “glory” of combat or the civilian’s naïve concept of “honor” had long since been replaced by an unimpeded view of the terrible realities of war. As a soldier, of course, I had pledged to sacrifice my life, if necessary, to accomplish our ultimate mission of defending the Constitution, and I emerged from my time overseas with an unshakeable conviction that I would continue to honor that pledge, even though I knew in an object manner the degree of sacrifice, suffering, and the horrors the endeavor might exact or engender. My deepest yearning, then, when I joined the Commissions, was to further my desire for revenge for the September 2001 attacks, and to avenge those Americans who had not survived their tours of duty, who had made the greatest sacrifice possible in this life: the loss of their own lives. In doing so, I reasoned, I would be protecting and defending the Constitution and our Nation, as well as contributing in some small measure to ensure that the fallen had not done so in vain.

So, far from being cynical and disillusioned, or feeling betrayed or used by the Bush administration to advance its misbegotten mission in Iraq, I had reduced my grand ideals to their essential core: day-by-day I would, I told myself, work as hard as I could to see those deserving of punishment suffer as much punishment as I could convince a Commissions panel to impose, even the death penalty if at all possible.

However, I had not been so transformed by my time overseas that I had banished my essential self, or the idealism that led me to become a lawyer in the first place. As a career prosecutor who had tried well over one hundred criminal jury trials by the time I arrived at the Commissions, I had certain professional expectations regarding the status of the cases under consideration for prosecution. When I arrived in May 2007, the Commissions and their predecessor tribunals, had been underway for almost six years. I fully expected that in that lengthy period of time, the evidence against the detainees would have been collected and systematized, that prosecution packages or files would have long since been assembled, and that informed, prudential decisions would have already been made about which detainees had committed war crimes, and which detainees had not.

Instead, what I found was precisely the opposite: despite the best efforts of the Chief Prosecutor at the time, Air Force Colonel Morris Davis, and his deputy, who I will not identify in order to respect his personal privacy, the prosecution enterprise was a shambles, in a state of disorganization that had me reeling in disbelief. It became clear to me within weeks after I reported for duty that the various military services had not assigned officers with the experience, skills, and motivation necessary to conduct the vital mission of prosecuting the war criminals with the sense of urgency and diligence the task required. As I’ve explained elsewhere – and my assertions have been confirmed by “senior Bush administration officials” familiar with the Commissions – the evidence and, more importantly, the missing evidence, had neither been assembled nor sought after with any diligence after prosecutors and investigators had discovered the evidence to be missing. The prosecution office, after detaining supposed enemy combatants for as long as six years, seemed to have accomplished little more than to install a security door in order to separate the prosecution offices from where the convening authority’s offices had then been located. Still, I saw this appalling situation as yet another obstacle to mission accomplishment, believed that these challenges could be overcome by sheer effort, and undertook my duties with a degree of optimism and resolve that, while undoubtedly tempered by my observations, nonetheless remained vibrant and, I thought, realistic.

The Talking Dog: You joined six others (Robert Preston, John Carr, Carrie Wolf, Fred Borch, Stuart Couch and Morris Davis) in resigning from the Guantanamo prosecutions because of the perceived injustice or ethical or other improprieties of them (Col. Borch resigned perhaps for different reasons)... can you tell me, in your own words, what it was specifically about the Mohammad Jawad case, or the GTMO prosecutions in general, or anything else, that caused you to resign from the prosecution? If you can tell us, what is your current status with the military (e.g. have you resigned your commission)? My understanding is that, for calling into question what you believed to be unethical and illegal conduct, you were subjected to a mental status review by the military... can you comment on that?

Darrel Vandeveld: As to the Jawad case, I filed a lengthy personal declaration in support of his habeas petition, and anyone interested in the details of my personal revelations and what I’m sure was viewed by the Commissions hierarchy as a disturbing volte face, can read the declaration here. The declaration is as detailed a dissertation on my evaluation of the case as I could muster under the time constraints, and presents an accurate portrayal of my assessment of the case. My fundamental conclusion, after eighteen months with the Commissions, was that no lawyer could certify to the Commissions and to opposing counsel that the discovery requirements mandated by the Military Commissions Act and its implementing regulations had been met, so dismal was the condition and organization of the evidence. Hence, I concluded, none of the detainees, or at least those whose cases I examined and evaluated, could be guaranteed a fair trial – not a perfect trial, which is impossible to achieve in any case, but a trial that afforded the detainees with evident and ascertainable fairness and transparency. The ineluctable consequence of this assessment required me, I believe, as a lawyer, military officer, and a human being, to refuse to participate in the Commissions any longer.

Regarding the other cases I was assigned to prosecute (at one point, I was responsible for one out of three cases filed before the Commissions), I have refrained from public comment and will continue to do so unless and until competent authority permits me to address the issues raised by those cases. I can say, however, that the intelligence agencies involved in those cases have undertaken massive, organized efforts to assist the Commissions in the pending prosecutions. Even these herculean efforts, I believe, have been unsuccessful in attaining compliance with our notions of due process and the MCA and Manual for Military Commissions, not to mention the deeply-ingrained American tradition of fairness. (I also formed the belief, and this purely my own conjecture, the more astute among those agencies probably realized that risking the potential compromise of sources and methods of information collection, in an effort to assist a process that had resulted in a grand total of three “trials” in seven years, would have exhibited a certain lack of prudence, to understate the matter significantly. There can be no dispute that revealing sources and methods can lead to lethal consequences for others, and intelligence officers, in my experience, will go to extreme lengths to protect such information.)

Finally, Brigadier General Thomas Hartmann did ask me to undergo an mental status evaluation after I had voiced my opposition to the Commissions. He seemed genuine in his concern for my well-being, largely because my derogation of the Commissions appeared to him, as I say, as an abrupt about face – an aggressive prosecutor who had displayed nothing but the most doctrinaire of beliefs about the propriety of the Commissions, into someone whose observations of the injustices at GTMO resulted in a lengthy period of anguish and a re-evaluation of my beliefs and motivations. Gen. Hartmann did not realize, because I had not confided in him, that my disaffection with the Commissions had evolved over a period of months, and after careful study and self-examination. I therefore do not question his motives for “requesting” the examination (a general officer’s “request” is invariably treated as a military order). I know the defense has developed a deep animus for Gen. Hartmann, but my own interactions with him were nothing but cordial and characterized by mutual respect. Whatever the reason he asked for the evaluation, though, the actual examination lasted for all of five minutes before the examining psychiatrist pronounced me fit to return to duty as soon as I could return to my office at the Commissions. The experience was nonetheless one of the most humiliating of my life, a feeling only enhanced when I saw the physician’s patients who were waiting to be seen. I needed no more than the briefest glance at the anguished, confused faces of these other soldiers to understand that they were genuinely in need of treatment and, as I hope and pray they’ve accomplished, a lasting peace and healing.

The Talking Dog: Following up on the Jawad case, in prior statements to the BBC, and in your court submissions, you noted that Jawad, who attempted suicide in custody, was mistreated in a number of ways, including being hooded, shackled and shoved down a stairway at Bagram, at GTMO, subjected to "the frequent flier program" (i.e. being moved every few hours to prevent him from sleeping), and subjected to "fear up" interrogation designed to take advantage of vulnerable medical and mental health conditions (and aided by medical professionals) in doing so, in order to get Jawad to confess...and Jawad did confess (perhaps after sleep deprivation and death threats), albeit with a thumbprint (that wasn't his!) to a document in Farsi, a language with which he was not familiar (as he was an illiterate Pashto speaker)! Without disclosing anything classified of course, can you describe what else you determined Jawad was subjected to, whether you'd consider it "torture" or otherwise, and what you became aware of other detainees being subjected to, and again, whether you would consider it torture or otherwise?

Darrel Vandeveld: I did not know, at the time I left the Commissions, that Jawad had been subjected to torture, as the MCA and federal law define the term. In the months following my departure, however, the Military Judge presiding over Jawad’s case did find that Jawad’s supposed confessions had been obtained through the use of torture by the Afghans, and that Jawad’s subsequent statements could not be separated in any meaningful, acceptable manner from his torture only hours earlier by the Afghans. Thus, the Military Judge suppressed all of Jawad’s “confessions,” thereby eviscerating the government’s ability to prove Jawad’s alleged guilt beyond a reasonable doubt. The government, of course, has appealed the Military Judge’s suppression rulings, but the more compelling legal analysis by far is that the appellate court, the Court of Military Commissions Review, will uphold the rulings. (The CMCR has delayed issuing an opinion in the government’s appeal pending the review of Guantanamo and the Commisssions ordered by President Obama.)

The Talking Dog: Again, on the Jawad case, I was struck that, similar to the Omar Khadr case (also chosen for prosecution), Jawad was absurdly young (16 or so at the time of capture) and his supposed "crime" (throwing a grenade at soldiers) appeared to be traditionally covered by "belligerent immunity" and while Jawad might certainly be a "POW" or "enemy combatant"... a war crime seemed more than a stretch. An I correct that somewhere along the line you came to the same conclusion? I take it somewhere along the line, you discovered exculpatory evidence about Jawad that was not provided to the defense team... can you tell us about that, and the reaction of your superiors in the commissions prosecution about that?

Darrel Vandeveld: Again, I submitted a declaration and testified (as ordered by the Military Judge) in a pre-trial hearing in Jawad’s case, and specifically mentioned items that I believed had not been relinquished to the defense by the deadlines the Military Judge had previously established. (The deadlines, I should mention in all candor, had not been anticipated or even requested by the defense, and the Military Judge’s surprise ruling afforded the prosecution very little time in which to comply. Errors made under those severe time constraints were probably inevitable and, in my view, excusable and remedied easily enough. Jawad’s defense had not by then been so firmly articulated that he suffered any appreciable prejudice by the omissions, in my admittedly minority view.) The omitted evidence, I discovered, had been entered into a database maintained by the Criminal Investigation Task Force (CITF) in the month preceding the hearing, without any notice to the prosecution that CITF had done so. I therefore testified that I did not believe these omissions had been intentional. I continue to believe, though, that the failure to turn over arguably exculpatory or mitigating evidence, even if unintentional, only served to underscore the travails of the Commission’s process, otherwise so evident to me and to the world.

My declaration also describes the seminal and compelling work of Professor Madeline Morris of the Duke University Law School, whose comprehensive knowledge of the history, evolution, and application of the law of war is the most cogent I’ve seen expressed by anyone to date. Professor Morris submitted to the Commissions a summary analysis of the charges against Jawad, and later testified as a defense expert witness on the subject. Professor Morris’s explication – again, as clear and cogent of any I have seen – would convince any objective observer that Jawad’s conduct, even if true and provable, did not amount to a violation of the law of war.

The Talking Dog: You and the current chief prosecutor (Col. Lawrence Morris) don't seem to have particularly nice things to say about each other... Col. Morris essentially calling you a disgruntled former employee who quit because you weren't happy with your recommendations not being followed and you essentially saying that Col. Morris lacks credibility... is there anything you'd like to add to that... and was there something more going on there than disagreement over the handling of the Jawad case? Can you tell me about your relationship with the prior GTMO chief prosecutor, Col. Morris Davis, who also resigned as a prosecutor, and what misgivings Col. Davis expressed to you (and you to him)?

Darrel Vandeveld: Col. Morris and I are vastly different people, with vastly different personalities and professional and military experience. We have irreconcilable differences in our assessments of the propriety and effectiveness of the Commissions, and, regrettably, what should have been a dispassionate debate (if a debate at all), degenerated into a personal series of accusations and counter-accusations that served no purpose, other than to demean us both. Now that the Commissions are all but finished, our differing views matter little and are best forgotten. I truly hope that Col. Morris will eventually adopt the same view of our personal rancor and consider our differences to be an insignificant bit of history better forgotten. Perhaps the best description I’ve come across of Col. Morris can be found here, in his own words.

Col. Morris Davis, the Chief Prosecutor who resigned from the Commissions when he failed to persuade the civilians who run the Commissions that his independence as a prosecutor had been undermined, even eliminated, by political interference from the very same civilians, has displayed a remarkable degree of moral courage and character, and has paid a steep personal price for his principled resignation. There is no doubt on the part of those who know him, that Col. Davis would have been elevated to the rank of general officer had he not refused to be bullied by members of the Administration, who sought to transform the Commissions into vacuous show trials. As with any great leader, Col. Davis largely kept his own counsel and never burdened his subordinates with his own professional struggles. He clearly possessed the ability and ethical rectitude to make the Commissions succeed, both in practice and in the eyes of the world. His resignation and subsequent pillorying in the media by anonymous sources who had their own selfish interests in mind when issuing their condemnations, has unfortunately resulted in an incalculable loss to our nation’s efforts to achieve justice with fairness and transparency.

The Talking Dog: Following up on that, Jawad's military defense lawyer Maj. David Frakt has suggested that you and he had reached a plea-bargain agreement, by which Jawad would have pleaded guilty to something relatively minor and gotten a light sentence (a la Hicks and Hamdan)... supposedly, Frakt has also suggested, your superiors overruled you on this. Is this anything you can comment on?

Darrel Vandeveld: The foregoing is accurate, and described in detail in the declaration I filed in support of Jawad’s habeas petition. When I realized Jawad either did not commit the offenses charged, or that the charges did not comprise a violation of the law of war, and that Jawad had been terribly mistreated while in US custody, I did seek to end his six-year imprisonment through a negotiated plea that would have required him to be afforded rehabilitation and reintegration services while he served a further, brief period in custody. My superiors dismissed my suggestions out of hand, unequivocally – even to the point of ridicule. With the possibility of securing Jawad’s release through a negotiated plea so decisively rejected, it clarified – if I even needed clarification by then – that I could not in good conscience continue to participate in the Commissions.

I do want to emphasize that Major Frakt is an outstanding lawyer, who possessed a singular grasp of the law of war, Commissions practice and procedure, and a basic commitment to equal justice under the law. Nevertheless, David Frakt is one of the most congenial people I know, and our initial, vigorous disagreements never descended into a lasting lack of mutual regard, even when our aggressiveness toward one another in the courtroom strongly suggested otherwise, at least to those observing the proceedings. I do confess, shamefacedly, that my initial appraisal of David and his advocacy was less than complimentary. My subsequent personal interactions with him quickly disabused me of my misconceptions. I consider David to be a good friend whose conduct was both honorable and admirable. I hope he and will be lifelong friends.

The Talking Dog: You have called GTMO a stain on our military, saying, inter alia, "It took me too long to recognize that we had abandoned our American values and defiled our constitution" and you said that the commissions process cannot end in anything resembling "justice". With all that, and again based on your own observations and experience, especially as we see blow-back (such as baseless claims we are hearing that "61 released Guantanamo detainees have returned to the battlefield" that "we are holding evil terrorists" and so forth)... what, based on your own experience, MUST the public know about GTMO, right now? What immediate advice would you give (my college classmate) President Obama, Defense Secretary Gates and other responsible officials, on this subject?

Darrel Vandeveld: President Obama has embarked on the correct path. The review he has ordered will unfortunately require more time to achieve than he’s permitted, for the basic reason I left the Commissions: the evidence, such as it is, is so diffuse or even lost, that the review committee will be unable to assess the cases against the detainees with any degree of certainty within the time allotted in the Executive Order. I have serious doubts that Guantanamo can be closed within a year if the evidence-gathering provision of the President’s EO is taken seriously.

Once completed, though (and the conclusion may very well be that the dismal efforts by the prosecution have defeated any realistic possibility of prosecuting all but a small number of detainees), the President should consider whether the Commissions can be continued, albeit under modified set of laws and rules that mirror the Manual for Military Courts-Martial and the Uniform Code of Military Justice. Guantanamo must be closed, whatever the cost, and creating a “national security court,” as some have suggested, will only lead to additional delay as the principles of any such enterprise are tested in federal court. Likewise, although I have not undertaken a comprehensive review of the proposal, prosecuting the confirmed terrorists and war criminals in so-called “Article III” courts in the US may suffer from justice-defeating impediments.

If I were forced to predict the future course of our activities at GTMO, through an admittedly dimly-lighted lens, I would envision the continuation of the Commissions in a modified manner that would conform to accepted standards of international law and to our own basic, inviolable notions of justice. Major Frakt has written a law review article on this subject (which he may now regret), articulating some of the modifications/wholesale changes that might be feasible and acceptable.

So, my advice to President Obama reduces to this: if trials in Article III courts are determined to be imprudent, time-consuming, or to involve too many Constitutional uncertainties, then reform the Commissions by the following: supplement your initial Executive Order with a more specific, imperative directive that ALL evidence be assembled on each detainee immediately, no matter the resources required to do so. Countenance no claims that the task is unattainable. Replace the current Convening Authority, Chief and Deputy Chief Prosecutors, whose failures are undeniable and who, in any event, no longer posess a shred of credibility. Instruct the military services’ top lawyers or “TJAGs” to conscript the most qualified prosecutors available, from whatever source (most probably the reserves, many of whose members are highly-experienced civilian prosecutors). Order the service TJAGs to relocate the entire operation to GTMO (currently, the prosecution and defense have offices in Northern Virginia!). Further, mandate that the Military Judges assigned to the Commissions be relocated to GTMO for the duration as well, holding court proceedings as rapidly as equity allows (before the President’s EO, the Commissions would meet at GTMO perhaps once a month – an unacceptably glacial pace), and to endeavor, consistent with the modified Commissions law and regulations, to complete all trials no later than 21 January 2010. Refuse to release any military personnel from active duty until the mission is complete. Knowing the soldier’s life as I do, this last step will instill the requisite urgency and effort all but abandoned in the preceding seven years. Finally, I would advise the President that after the fair, equitable and just trials are completed, to order the prison camps at GTMO destroyed -- bulldozed to the ground, not in an attempt to erase the past, but as a means of recognizing the abandonment of our American values that took place there. Put a decisive end to GTMO.

In sum, if the detainees cannot be tried in US federal courts, replicate the intelligent, reasoned, and highly-regarded Nuremberg trials to the extent possible at GTMO. Restore America as a force for good in the world. Complete the mission at GTMO, with honor and expeditiousness – not dishonor and expediency.

The Talking Dog: Can you describe "the gestalt" of the GTMO prosecutor's experience... in particular, your statements were the basis for the recent reporting that prosecution files and evidence "were in disarray" (which you discovered upon your arrival in 2007, some several years after the commission system started)? I have suggested that this would be consistent with prosecutors not having much confidence in their "evidence"... is that anything you can comment on? Can you compare this situation, for example, to how other military prosecutions have been run, and to your experience as a civilian lawyer? To the extent its not classified, can you identify the other GTMO prosecutions with which you were associated?

Darrel Vandeveld: There were more than a few competent prosecutors at the Commissions when I was there, but most of the others hadn’t tried a case in years, if at all, and then only within the military justice system. With the implicit pressure to file charges as quickly as possible, my supposition is that many prosecutors succumbed to the human temptation to charge the detainees and seek the evidence later. (Compare and contrast my personal experience in Jawad, when I thought I already possessed all the evidence necessary to convict before swearing charges against him.) It appeared to me that many of the prosecutors did not even know the Military Commissions Act and Manual for Military Commissions to the degree necessary to assure themselves that they were in compliance with the law and regulations. Again, there were definitely exceptions to this broad characterization, and I have to admit that most of these exceptions to the rule were reservists who had extensive civilian prosecution experience. Others, regrettably, seemed to passing the time until they could either retire or move to another assignment somewhere in the D.C. area; i.e., their personal concerns were primary.

Again, if my earlier comments were unclear, trial should be held in Article III courts for the dozen or so detainees who are true war criminals or terrorists. If this is determined to present too many legal impediments to fair trials or too much uncertainty, then the Commissions could be redeemed through judicious modifications that render them fair and just. In either event, seven or eight years to bring the detainees to trial is a travesty; holding for those who should have been released long ago (the plight of the Uighurs is particularly repellant) is unbelievable.

The Talking Dog: I join all my readers in thanking Mr. Vandeveld for that thorough and extremely 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 Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with Joanne Mariner of Human Rights Watch, and with Almerindo Ojeda of the Guantanamo Testimonials Project to be of interest.

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February 20, 2009, Happy birthday...

To TD Mom... who turns an amazingly youthful three-score and ten today...

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February 19, 2009, WTF?

It's not particularly hard to draw one's own conclusions re: the kerfuffle surrounding one little iddy biddy editorial cartoon in Rupert Murdoch's New York Post.

I mean, sure, it appears to simultaneously (1) depict the first Black President of the United States as a monkey (2) who has just been executed by the police... and it has the adorable caption "They'll have to find someone else to write the next stimulus bill."

I suppose, thirty days after the inauguration of our nation's first Black President, that this particular cartoon appearing in an arch-right-wing paper might be interpreted to mean something other than the deliberate depiction of President Barack Obama as a monkey being gunned down... it's possible that this is some sort of "honest misunderstanding"... by my calculation, it's possible... at roughly the same likelihood that historians will consider George W. Bush the greatest President in American history.

February 18, 2009, Habeas... shmabeas

In what should have been a surprise to exactly no one, a three judge panel of the Neocon All-Star Team United States Court of Appeals for the District of Columbia Circuit ruled that anything George W. Bush did is a.o.k. with us for the rest of our natural life-tenures ethnic Uighur Chinese national detainees of Guantanamo Bay cannot be released into the United States, reversing a decision by District Judge Ricardo Urbina. Judge Urbina fashioned that remedy (of admitting the detainees to the custody of stateside human rights groups and the Uighur community) because the Chinese nationals would face probable persecution, torture and/or death if returned to China (which has vowed to try them as terrorists). An earlier group of five Uighur detainees was shipped to former Chinese ally Albania... for which Albania paid a steep diplomatic price from the Chinese.

The nominal basis of today's decision is that the federal courts simply lack the authority to fashion a remedy, even in the sui generis circumstances of the Guantanamo Bay detentions, because notwithstanding the intrinsic power of the courts to implement their rulings implementing the habeas corpus remedy, well, "immigration" is solely in the hands of the legislative and executive branches, and more to the point, they just don't want to. In effect, the Neocon All-Star Team D.C. Circuit, that is to say, a court lower ranking than the U.S. Supreme Court, is taking it upon itself to overturn the United States Supreme Court's decisions in Rasul, Hamdan, and Boumediene, which held that the detainees do in fact have the legal, Constitutionally guaranteed right to seek relief in habeas corpus proceedings in federal court (and the federal All Writs Act among other statutes and legal authorities give the courts the ability to fashion remedies to bring about the ordered relief).

In other words, the lower court has decided that the United States Supreme Court has directed the lower courts to conduct an academic exercise: a paper remedy, devoid of any substantive relief (other than what the executive branch might, as a matter of its sole discretion and grace, deem appropriate.)

In my interview with former Guantanamo detainee Moazzam Begg, he referred to the detainees' habeas remedy as follows:

The illusion of habeas corpus was just something to hold on to. To quote, I believe it was Justice Kennedy, “Habeas corpus is a promise to the ear to be broken to the hope... a teasing illusion, like a munificent bequest in a pauper’s will.”

I remember this, that’s how the idea floats– habeas corpus means you get your day in court... But in reality, no one at Guantanamo in reality will ever get to court... this is a game, a charade, an illusion...

U.S. justice at Guantanamo is an oxymoron. The Supreme Court decides that there is a right to be heard– for detainees to present their case in court. And the government doesn’t afford that right. Anywhere else, the government would be in contempt of court. And yet, the court ruling is simply ignored, or sidestepped by the government.

And there is also the inconceivably long time it is all taking. Why is it taking so long? It became understood by detainees that this was all part of the sentence– another means of keeping us locked up... On paper we’re offering you the right to present your cases to court... but in reality, it is nothing but a munificent bequest in a pauper’s will.

The Obama Administration should have seen this coming: the same three judge panel that stayed the operation of Judge Urbina's order in the first place by emergency stay was extremely likely to find that they weren't wrong on the case in chief, and indeed... this was the case. Simply by withdrawing the [mean-spirited, last-minute] appeal, the Obama Administration could have shown the world that the United States was doing its part to solve the mess created by the Bush Administration by admitting prisoners that our own military said posed no threat to the United States, never engaged in hostilities, and should never have been detained in the first place, and shown that we respect the rule of law because it could have done so under cover of court order.

Now, of course, the usual suspects (who would call President Obama "a tax and spend liberal" who is "soft on terror" even if he displayed OBL in chains in the Oval Office as he handed him over to the Attorney General for trial after having first single-handedly captured him on live television) will dramatically and unnecessarily raise the political price for admitting anyone else at all, if we can't even admit men who our own military says aren't enemy combatants. Another missed opportunity... and all the more troubling as the Obama Administration holds all the cards itself, and doesn't need Republican votes on this one.

Not a particularly good day in the annals of American jurisprudence, I'm afraid. This has been... "Habeas... shmabeas".

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February 14, 2009, Greetings from Guantanamo Bay

Recent TD interview subject Almerindo Ojeda of the Guantanamo Testimonials Project hits it out of the park with his own interview of former GTMO prison guard Army Specialist Brandon Neely. In the interview, Neely describes the sundry experiences of a prison guard in the very early days of Camp X-Ray, Guantanamo Bay, including his observation of (and occasional participation in) the various abuses heaped upon the hapless prisoners, observations of disrespect of the Koran and the detainees' religious practices, a number of acts of kindness, and an amazing catalogue of the experiences of a young, inadequately trained soldier placed by our Government in the unpleasant if not entirely untenable position of guarding a bunch of people who we have later learned by and large shouldn't have been there but who at the time we believed to be the most dangerous people on Earth.

The A.P. has a feature story following up on Almerindo's ground-breaking interview.

It has certainly been my own intention to try to do as much as possible to de-bunk the propaganda generated by the Bush Administration and its media allies about who we were and are holding and what we were and are doing at the American-flag waving detention center being run in our name and with our tax dollars at Guantanamo Bay, Cuba, and to demonstrate, by asking as many people as will talk to me, just what their own observations are and have been, in the hope that, perhaps eventually, the truth will set us free. ( And maybe, the truth will eventually help to set the hapless men we are holding there free, and perhaps help to bring that tiny handful of those there who actually might be responsible for nefarious acts of terror... to justice... and not to some right-wing wahoo revenge fantasy... but to justice, in the best American traditions.)

Brandon Neely's is just one more perspective from someone, unlike you, and unlike me... was actually there.

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February 14, 2009, Logical Conundrums

We start with new Republican National Committee Chairman Michael Steele telling Glenn Beck that there is just no reason for anyone to trust anything that the Republican Party now says.

Then, we'll throw in Sen. Arlen Specter (R as in Running for Reelection - PA) and his observation that Republicans like the stimulus package just fine (after all, it has hundreds of billions of irresponsible tax cuts, and the most-actually- stimulative parts were surgically removed)... it's just that they don't want their own fingerprints on it. This, at least, is consistent with the final passage of the bill in which only three Republicans in the entire Congress (Specter and Snowe and Collins of Maine) voted for.

And it's also all consistent with Jane Hamsher's observation that bipartisanship
is dead

Will the Obama Administration "get it"... and realize that the Republicans are at this point... what Michael Steele said...

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February 12, 2009, Milestones

As I frequently allude to, we live in amazingly self-absorbed times. How self-absorbed? Well, sometime today this humble blog will reach it's 500,000th site-view... no... where was I... Oh yes...

Today, while we should celebrate the simultaneous bicentennials (today, people!) of the births of Charles Darwin and Abraham Lincoln, both pictured above, this event is pretty much by and large ignored. To be fair to our current President, he's been in office 23 days now; this sort of thing would have been the responsibility of his predecessor. Well, we can certainly see why the Bush Administration wouldn't have spent any time planning for any Darwin celebrations: after all, his very existence "was just a theory". As to Lincoln, however, the guy was the first Republican President... not to mention the original Republican "War Monger President".

But seeing as Lincoln didn't carry a single Southern state (and managed to win his second election without the South even voting)... he doesn't count. I mean, let's face it: he was no Ronald Reagan. Still, you'd think our new President, being our (actual) first Black President and being our (only President besides Lincoln) from Illinois might try to make a bigger deal about the Lincoln bicentennial... but to be fair, he's been in office around three weeks... and he has some other things going on... so on this (unlike, say, "state secrets," which do harken back to Lincoln and his rounding up and jailing war opponents from right off the streets), I'll just cut the President some slack.

But as for the rest of youse... say happy boithday to Chuck and Abe...

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February 9, 2009, Rookie issues

Well, for the good news... the President seems to be confidently taking his model of organizing from outside Washington to take on politics inside the Beltway, both in his earlier town hall meeting in Elkhart, IN, and later at his prime time press conference; Al Giordano covers the field, in order to advance the economic stimulus package.

During that press conference, besides reinviting Helen Thomas into the fold of Presidential questioners, the President called on Sam Stein of the Huffington Post. Stein asked the President "the question": whether he would investigate, and if appropriate, prosecute, his predecessor's administration for war crimes, a question the President evaded.

It is understandable for the President to have evaded that direct question, as, well... the decision hasn't been finalized. However...

Andy Worthington tells us that things are not good at GTMO. Dozens of prisoners went on hunger strike after the seventh anniversary of their detention (with no end in site), and the horrible regime of force-feeding is apparently... in force. (For background on the force-feeding, see my interview with Dr. David Nicholl.)

Evidently, despite SecDef Gates supposedly being part of President Obama's cabinet, and answering to him, at GTMO... it appears to be business as usual (sadly). This is consistent with Candace's observations at GTMO recently, where her own clients continue to decline amidst unchangedly horrible conditions.

Don't know. I will say that the President would be well-advised to implement Candace's suggestions in her recent open letter; on that front, perhaps some help will be coming as among the Pentagon officials that were confirmed by the Senate today is General Counsel Jeh Johnson, the President's GTMO fact-finder during the transition, and to whom Candace's open letter is addressed.

While progress on the economy will be "hard," and as the President himself told the nation, we cannot be sure that expectations for the stimulus bill will be met, at GTMO, he is the commander in chief. We will see... on this as on everything, it appears that further organizing and effort will be needed to make the President do the right thing... the right symbolic things have been put in place... now we have to make sure they get done on the ground.

Update: Bad, bad, bad rookie mistake. Extremely bad. Glenn Greenwald joins all people of good will in being outraged about the Obama Administration's decision to adopt the obscene and unconstitutional position of the Bush Administration on "state secrets privilege" as its own in a Ninth Circuit case against a Boeing subsidiary for its role in the extraordinary rendition/kidnap/torture program; I should add some of the judges hearing the case were shocked to hear that as far as the Obama Administration is concerned, on this core issue, the election had no consequences. No, this is not good.

And it is entirely unnecessary: the cat is out of the bag on these programs, and supposedly, Obama means to end them. The only possible purpose of this old new position on the part of the Obama Administration is to take complicity in covering up the crimes of the Bush Administration so that it is not compelled to take further action. By doing so... it buys those crimes as an accessory after the fact. No, not good. This does not bode well for anything.

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February 9, 2009, Who you gonna believe... me, or your lying eyes?

And so it seems, Nobel Laureate and Grey Lady columnist Paul Krugman isn't happy with how the stimulus bill has gone down. He believes that President Obama's post-partisan claptrap (which has resulted in flipping exactly zero Republican House members and a princely three Republican Senators) to openly support the stimulus plan has been counterproductive, and results in a weaker bill that foolishly benefits the affluent and fails to benefit those who most need the additional government support... all while falling well short of "the stimulus" actually needed.

To which I say, Professor Krugman has the viewpoint exactly backwards in order to get his point across. Social Security remains an extraordinarily popular program precisely because the richest Americans receive it, and generally, receive more than the poorest Americans. Were it made fairer in any way-- the tax to pay for it less regressive, the benefits means-tested to better pay for it (or my own suggestion, indexing the minimum wage to increases in the Social Security Cost of Living Allowance)... the program would be far less popular. Which is why Professor Krugman's opener...

What do you call someone who eliminates hundreds of thousands of American jobs, deprives millions of adequate health care and nutrition, undermines schools, but offers a $15,000 bonus to affluent people who flip their houses?

A proud centrist.

utterly, utterly, misses the mark.

Now why is this? Are most Americans just stupid? Well, yes. Yes, they are. Shockingly and appallingly so, by the way. Don't even get me started. But to be fair, this isn't the reason why Professor Krugman is wrong on this one.

No. Americans are entirely self-absorbed. And not with their families, their nation, their community... but with themselves. While some of us show the occasional tinge of guilt for our good fortune while millions of others are unemployed, homeless or perhaps even starving in our most-affluent-country-that-has-ever-existed... most couldn't give a crap, and are only concerned with their own problems, which includes of course, the fact that we might be taxed at all. I'm sure that Professor Krugman would probably agree with me on both propositions. And so the question is... how do you pitch it in such a way as to get it through a political system that really does reflect the (1) stupidity and (2) venal self-absorption of the electorate?

You have to appeal to people's perceived SELF-interests, and I most especially mean all-caps there. Even our former President George W. Bush alluded to "this sucker might go down"... meaning that if the water is removed from the lake, the yacht hits the bottom just as hard as the canoe or dinghy, if not faster. In other words, the pitch has got to be that this truly isn't politics as usual... in other words, your (stupid) tax break or $15,000 flip your house or buy an SUV tax credit this year, by failing to ensure that, say, 5 other people keep their jobs, may result in you losing your own job (and house... and SUV) next year... not in a 5 or 10 year time frame, but next year... because the system itself is on the brink of collapse, AND THIS MEANS YOU. In short, the usual spitting-upon-the-less-affluent that passes for our national cultural ethos "must be set aside in the interest of national unity."

In short-- we must make it clear that the Republicans, by their actions, seem to want this kind of collapse... and as such, simply cannot be tolerated, their opinions given the weight we give to the opinions of inmates of correctional and mental health facilities. Rush said, outright, that he wants Obama to fail. But if Obama fails, America fails. That means breadlines, Hoovervilles, perhaps Weimar Republic currency collapses... in short, last year, you worried about your 401(k), this year you're worried about your job... by next year you may be worried about your next meal and where you're going to sleep. In such an environment, bipartisanship is a four-letter word.

Yes, it's that bad... the fact that the "stimulus" may be helping someone you don't like (probably with a funny accent and/or darker skin) isn't the issue: if you don't help that other person, the cumulative economic activity that leeps YOU employed may fail, and you will join the former "other" on the bread-line.

The President will be taking the bully pulpit on the road this week; he'll be pitching in really hard-hit areas that know all this... the people in those areas had better let their Senators-- especially their Republican Senators-- know that payback might well be a real bitch, especially at election time. Otherwise... we can business-as-usual ourselves into financial abyss and possible overall collapse. Just saying.

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February 7, 2009, Baseball's Bernie Madoff

It was a matter of time, I suppose, before we were going to learn that baseball's Alex "A-Rod" Rodriguez tested positive for steroids. The highest paid player in the game, A-Rod has usually represented "addition by subtraction" for whatever team he left, and instant also-ran status to whatever team he joined, despite being, statistically, one of the greatest players in the history of the game.

While it would have been no dishonor to have won no World Series rings with the perennial also-ran Seattle Mariners or the perennial not-very-good-at-all Texas Rangers, for a not insubstantial period of time, A-Rod has brought his "clutch hitting only when it doesn't matter" ways to the once-mighty New York Yankees, who, last season, failed to make the playoffs for the first time in well over a decade.

But while his personal greatness on the field never somehow correlated with his team's actual success, fans put up with A-Rod and his obscenely disproportionate compensation because at least he didn't cheat like Bonds, Sosa, Clemens and McGwyer. And now, it seems, like financial-fraudster-for-the-ages Bernie Madoff and his patina of respectability... the patina was false, and A-Rod... was a God-damned cheater like everybody else.

While people like George Will go on endlessly about baseball's steroid storied status in our culture, I think it's about time once and for all to note that the world's game happens to be soccer (the sport in which I coach my daughter and a dozen of her contemporaries each spring)... not baseball. I used to suggest that baseball was the sport of "kick-ass countries" (the United States and Japan... and, I suppose, Cuba, Venezuela and the Dominican Republic) whereas soccer was the sport of... other countries. Well... it seems I was wrong... our "kick-ass-ness"... at least as it has existed for the last 28 years (when we as a nation voted against Jimmy "Eat Your Damned Vegetables" Carter in favor of St. Ronald "No, No, Jelly beans Will Meet All Of Your Nutritional Needs" Reagan)... has been as much of a fraud as we have learned that much of our economic strength has been.

As our fantasies about heroes and celebrities and money-managers and everyone else who is more rich and famous than us are shattered one by one... will we have the appropriate collective reaction (that would be anger, to the point of pitchforks and torches)... or have decades of dumbing down, medication and the mollifying effects of high-fructose corn-syrup and "reality" television finally turned us into a culture of vegetables (in attitude, rather than diet)?

We will see, is all I can say. I'm just not betting on anything good to come out of any of this. Look for A-Rod to be unapologetic about any of this, and to come back next season with 50 meaningless home runs, 160 meaningless RBIs, and the Yankees to finish 5 games out of the playoffs, while continuing to draw his immense paycheck. Because that's what it's come down to.

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February 5, 2009, Yet more stimuluating conversation

The Grey Lady reports that the Senate Democrats (yes those Senate Democrats) may have realized that, in fact, they don't need 60 votes to pass anything, given that Joe Biden is the Vice-President and Minnesota still hasn't seated a Senator, 50 votes will be just fine... and so, it seems, they are prepared to go forth and pass the President's economic stimulus package, the Republicans and their quite-literally-enemies-of-the-people obstructionism be damned.

And, Al Giordano, the man with his ear to the pulse of organizing (as led by our community organizer President), lays out how the President is, of course, organizing the national movement that will be set in motion to make the economic recovery bill a reality (with or without the Republicans, who seem to believe in the zero-sum game that trapped pre-Obama Democrats, i.e., they can only win if the Democrats... and everyone else, of course... lose).

The President will have a nationally televised press conference on Monday night (remember those? It's been eight years since we had anything approaching coherence in that department...) to push home the stimulus package (of course after a weekend of house parties and organizational groundwork.)

Ever since we "cut the cable," I've been pleased to be beyond the distractions of the chattering asses on cable, who tell us crap like at just over two weeks in, Obama's already a failure because he hasn't erased the national debt, invented cold fusion, eliminated death and led the Cubs to a World Series championship... well, screw them. It seems Obama is right on track to pass one of the most important pieces of progressive legislation in decades... let's all have his back on this one, and see if we can't get this economy moving again, perhaps for the first time in, oh 28 years... in a way consistent with social justice...

Just saying...

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February 4, 2009, Stimulating conversation

With a huge majority in both houses, notwithstanding the near "filibuster proof" majority... it appears that the "economic recovery" or "stimulus" package of $900,000,000,000 (yes, that's $900 billion) in additional deficit spending lacks the votes to pass in the Senate, at least in its current form. It would appear that the problem, as we always knew it would, comes from wavering Democrats who aren't backing the President, as its not a filibuster threat that's the rub here, but good old "blue dog" Democrats.

Thing is, the "stimulus" is in fact, a big-time progressive initiative finally providing adequate funding to education and health care, as well as (finally) correcting some of the (insane) inequities in regressive withholding tax... and, it seems, Republicans know this, and Democrats don't give a crap. To his credit, the President is playing the emergency aspect of economic collapse to try to push this... and as usual, the fat cat morons in his own party won't stand for a progressive agenda.

Oh well. Coming off of the Tom Daschle fiasco (the former Senate leader suffering "the revenge of Geithner")... a possibly serious failure on the stimullus package where the Democrats hold 56 seats plus Sanders and Lieberman to the Republicans' 41 (with Franken/Coleman still undecided) could surely be a sign that "reality bites"... We're not there yet, of course, but Washington lives in its own world and not the one the rest of us live in... "our friends" never have been... and in short... what else is new?

Here's hoping that we somehow really do get "change"... but when it comes to Democrats (especially when "led" by Harry Reid) being ineffective at anything helping working people... I fear "bid'ness as usual" trumps almost anything else. Look for more tax cuts for the rich, reduced social spending, and a pleasant looking White House ceremony with Mitch McConnell and John McCain front and center in about two weeks or so. And if the economy doesn't improve as a result of "business as usual"... well, that's good old bipartisanship for you.

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February 2, 2009, Candace's Open Letter to Jeh Johnson

Jeh Johnson is the new General Counsel of the United States Department of Defense. Today, Candace published an open letter to Mr. Johnson in the Huffington Post.

With apologies for harkening back to a metaphor used by the Bush Administration, Candace lays out a roadmap for one of Mr. Johnson's signal tasks as DOD GC: closing Guantanamo.

Candace's letter, in its entirety:

Dear Mr. Johnson:

First, let me congratulate you on your appointment to the esteemed and critically important position of General Counsel of the United States Department of Defense. As you know, an unfortunate legacy of the last Administration is that the Defense Department is charged with running the notorious detention facility located at Guantanamo Bay, Cuba, where my clients, Abdul al-Ghizzawi of Libya and Razak Ali of Algeria, have been held prisoner for nearly seven years. I write this letter to provide you with what I hope will be helpful advice to you; I write solely on behalf of myself, an attorney trying to best represent my two clients, and not on behalf of any other Guantanamo Attorney.

I must say I am pleased with the President's clear commitment to close the Guantanamo Bay detention facility. While I believe that the one-year time frame in his Executive Order is unnecessarily long (and indeed, the purpose of this letter is to provide advice that will greatly accelerate that time-table), it is understandable for President Obama to be cautious, given the numerous pronouncements made by the Bush Administration about the purported dangerousness and threat presented by the Guantanamo detainees. Of course, the very same Bush Administration saw fit to unilaterally release over 2/3 of those detained, and has designated a significant percentage of those men it is still holding as being held without continued basis to do so as they pose no threat (and never did).

While the President has shown great courage and initiative on this issue so far, more will be required to complete the task of closing Guantanamo. Indeed, your job will be harder than it might otherwise be, simply because you cannot trust your predecessors. The widely reported "disarray" of files supposedly documenting the justifications for holding the detainees should tell you better than I can that you should not take anything told to you by the Bush Administration at face value; its credibility is simply non-existent. More useful information is readily available from a number of public sources that I link to on my personal web-site (The Guantanamo Blog).

Perhaps the simplest advice I can give you at the outset is what you should not do. One suggestion now circulating is to immediately move all the detainees (other than those to be immediately released) to the American mainland. I believe that this would be unnecessarily traumatic on men already held arbitrarily for years; it would be better to simply move the detainees to less restrictive parts of Guantanamo Bay itself, and begin the counseling programs (such as the kind that Saudi Arabia has undertaken with respect to its own returning nationals) to ensure an effective transition of these men to their long overdue freedom.

The "Easy" Part

There are a number of prisoners (because of the prior administration's lack of transparency we can never be sure of exactly how many) who have already been designated "not enemy combatants." They continue to be held for no reason whatsoever and many under the cruelest of conditions. They should be freed immediately. As the rest of the world is standing by waiting to see us take responsibility for Guantanamo, you should start by releasing the Uighur detainees into the United States where we would grant them provisional asylum consistent with the plan approved by Judge Ricardo Urbina. Although I know the Justice Department does not come under your purview you should suggest to Attorney General Holder that the DOJ drop the mean-spirited, last-minute appeal of Judge Urbina's order lodged by the Bush Administration, and simply comply with that order. It can become a model of how to deal with the remaining "not enemy combatants" who can either be returned to their home countries or else to friendly nations that have offered to help us.

The remainder of the prisoners should be almost as easily dealt with as that first group. This group, representing most of the remaining prisoners, happens to include both of my clients. It consists of those prisoners that the government has not seen fit to designate as "non-enemy combatants," but has decided it does not have sufficient evidence to charge with anything. In fact, if my clients are representative of this group (and I have reason to believe they are) there is nothing to charge them with. You will soon discover that most of these men are not even remotely within the legal definition of "enemy combatants," that is, apprehended in the course of military operations, or "picked up on the battlefield". Those who were not so apprehended, should be treated like the first group (that is, promptly repatriated to their own countries, third countries, or failing that, granted asylum under supervision of domestic human rights groups).

Even those few prisoners who actually were "captured on the battlefield"--like the famous Taliban cook we are now holding -- should, after this seven year period of arbitrary detention-- themselves be returned to their home countries. At this point, the balance of the much debunked premise that these are "hardened fighters" who would "return to the battlefield" when weighted against the diplomatic, moral and legal cost of continuing to hold these men favors simply adding them to the group to be promptly released with those "not" captured on the battlefield. (Again, a counseling program as described above could go a long way to ensure these men's smooth transitions into post-Guantanamo life.)

The "Harder" Part

Although my own clients do not fall within this group, I would not be serving you well without addressing those Guantanamo prisoners that the Bush Administration has been exploiting to justify the entire enterprise, those who could potentially be charged and tried. In many ways, this group is the most difficult to deal with because of how these prisoners have previously been treated by the Bush Administration, and how they have been portrayed in the media. We may never really know the truth about the guilt or innocence of these men. You must bear in mind that, of this group, two of the first three men for whom verdicts have been reached received very short sentences and have since been released. This is not insignificant: when fairly judged by members of the military's judiciary, even in a flawed commission system that most objective observers believe to be fundamentally unfair, even the allegedly very worst of the worst have been handed short sentences. This means that even those men who the Bush Administration has told us are "high value detainees," or are alleged to be "the 9-11 plotters," must be looked at with clear eyes and a very healthy dose of skepticism.

The easy answer is to refer this group (at most 10% of prisoners still at Guantanamo) for trial in American federal courts. However, I submit that this is not such an easy answer, and that it is almost certainly not the right answer. We can agree that no one wants to see the actual perpetrators of September 11th go unpunished. But this has been the problem with the Bush Administration's "answer" of trying to get "the truth" out of men by torturing them (and without doubt, these men have been tortured, as officials from Vice President Dick Cheney to "convening authority" Susan Crawford have conceded it). Given the taint of torture, we simply cannot be sure with any degree of reliability that we are actually even holding the actual orchestrators and perpetrators.

Some efforts of the Bush Administration, such as sending FBI agents to interrogate prisoners to try to get "clean" evidence were a cynical and downright un-American exercise that failed to acknowledge the fact that, once a man is tortured, one cannot obtain a truly free and voluntary statement from that man, let alone a reliable statement, ever again. This is why such mistreatment and torture is absolutely barred by the Eighth Amendment and utterly anathema in our judicial system. As former Naval Judge Advocate General Admiral Hutson famously said, "you can't un-torture them." Even if evidence not derived from torture and abuse (and predating these men's apprehensions) could somehow be assembled it is still inconceivable to imagine that men who have undergone years of torture in CIA "black prisons" or in the hands of foreign governments, could still be in a position to meaningfully assist in their own defense. Accordingly, there are two alternatives, neither fully satisfactory, but one clearly superior to the other.

Unfortunately, the inferior alternative is the one proposed by President Obama: trying Guantanamo detainees within the purview of either the federal courts or the existing military justice system. Most agree that the military commissions system has been an abject and unmitigated disaster, and ending it immediately is the best possible result. While there is certainly precedent to try individuals associated with the war on terror in the federal justice system, the cases of John Walker Lindh and Jose Padilla demonstrate the problems with this approach when it comes to men who have been tortured. In both of these cases, before their federal prosecutions, each was grievously mistreated, indeed, tortured, in the custody of the United States military. Though both were convicted (Lindh after plea, Padilla after trial), neither was a case where, because of the torture, either could reasonably and effectively participate in their own defense-- a fundamental underpinning of the ability to have a fair trial.

While federal courts can conceivably weigh the abilities of individual defendants to adequately assist in their own defense, and whether statements obtained by coercion or torture are admissible in court, this exercise would, by necessity, require the courts to directly consider the mistreatment received by these defendants. The federal courts, and the Justice Department, would be put in the extremely uncomfortable position of having to litigate the effects of prior abuse and torture of these detainees. Even if it is determined that these men can assist in their own defense, this would be the kind of determination that would not necessarily be perceived as "fair" either here or in other nations.

There, is however, a superior alternative. It is actually the one that most reflects President Obama's message of change and fresh starts. International structures, notably the International Criminal Court (ICC) in The Hague, and the ad hoc special tribunals for particular conflicts, already exist, and can effectively prosecute the alleged terrorists and September 11th masterminds, sort out the reliability of evidence against them, and do so without having to compromise the integrity of the American legal system in the process. (Of course that means we would have to "re-sign" the treaty recognizing the ICC but we should show our commitment to the rule of law and sign that treaty again immediately, and make the effort to ratify it.) Any convictions obtained by such international tribunals would have instant international legitimacy; and even acquittals would be less embarrassing than if obtained in the American judicial system. While not a "perfect" outcome, the Bush Administration's failure to behave in accordance with civilized norms for nearly eight years has placed us all in a difficult position, and given the alternatives, this is probably the best of them.

Again, please accept my best wishes for you to implement the President's policy of closing Guantanamo as expeditiously as possible.

Sincerely yours,
H. Candace Gorman

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February 1, 2009, Backsliding? Is the perfect the enemy of the good?

The LA Times reports that the Obama Administration has decided to retain "extraordinary rendition" amidst the CIA's officially sanctioned bag of dirty tricks; the practice is simply a euphemism for "kidnapping". As the piece notes, some human rights groups are less concerned with this "policy option" in the hands of an Obama Administration more committed to the rule of law than its predecessor, but certainly, the program has been problematic, and led to horrific treatment by those kidnapped and handed to the custody of foreign dungeon keepers. (For more background on the subject, I refer you to my interviews with Trevor Paglen, Stephen Grey and Joanne Mariner.)

As Mr. Paglen said in my interview with him, the whole point of our having a CIA is for it to do illegal things, that our military can't dirty its hands with. Which, when coupled with its miserably poor record at actual intel gathering and its long history of botched intrigue behind the iron curtain, and the fact that a pair of Western n'er-do-wells named Lindh and Hicks could do what it couldn't (just walk into bin Laden central)... regular readers know that my view is that we should do something more productive with the money we spend on the CIA, such as flushing it down the toilet, or dropping it out of airplanes.

But alas, when one is President, one realizes that the CIA and its sister intel agencies are there... and dismantling them ends up easier said than done (no matter how desirable), and so... some use for them is thought of (sadly).

Like many abominations of the Bush years (such as "the permanent campaign") extraordinary rendition had its origins in the Clinton era, which generally used it either to bring people to the United States for trial (our courts have permitted the practice on the theory "you're here, aren't you? who cares how you got here!"), or to other countries that had legal warrants outstanding for its own citizens (and contrary to what we said, countries such as Egypt tortured and we knew it... but at least there was an appearance of legal process involved). By contrast, the Bush Administration just grabbed whomever it felt like (classic cases of simply mistaken identity like Candadian Maher Arar, yanked out of customs at JFK on his way back home to Toronto and "renditioned" for months of Medieval torture in a coffin-sized dungeon cell in Syria, or Mr. al-Masri of Germany mentioned in the article, who field agents told Langley was the wrong guy, but the bureaucrat in charge "had a guy feeling" to keep holding and torturing the guy).

Still and all... the Obama Administration has shown some promise, at a symbolic level if nothing else: an attorney general deisgnate who believes water-boarding is torture, and executive order to shut down GTMO, and other "rule of law" indications are afoot. At this early stage while it is finding its "sea legs," one can see that it wants to "keep its options open." As such, although we'd be far, far better served if "extraordinary rendition" weren't one of them, if 'twere used solely to bring people to face actual due process of law here (and never EVER to bring people to third countries EVER), I suppose that's better than some alternatives. Still, niceties like "warrants" and "extradition" and all do exist for a reason, and when the first Americans get kidnapped by some foreign nation's "extraordinary rendition program," that will probably not be particularly well-received here, methinks...

Just saying.

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