While I often don't agree with him (!), sometimes Andrew McCarthy of National Review Online has interesting things to say, and this piece on the Obama Administration's brief opposing the grant of review in the Uighurs' case is an excellent example. McCarthy does what Dick Cheney doesn't, and lauds the Obama Administration for adopting Dick Cheney's policies, in this case, the argument that despite three major Supreme Court cases and nearly 900 years of jurisprudence to the contrary, habeas corpus is really a dead-letter that can be thwarted by simple governmental recalcitrance. Specifically, the premise is that the 17 Uighurs still languishing at GTMO (for background, you might want to consult my interviews with attorneys George Clarke and Wells Dixon, who, together, represent six of them) cannot be admitted into the United States absent executive fiat, despite a court conclusion that (1) there is no legal reason for the U.S. to hold them, and (2) the Great Writ requires it as a remedy. McCarthy says: "Fie!" "Great Writ, my ass, these are swarthy Arab nasty Chinese terrrrrorists!" TD says "we are either governed by the rule of law, or we are not." It's a reasonable debate; most NRO writers will intrinsically favor tyranny, and I admire their consistency of continuing to favor it, even when the executive branch is led by a Black man. I'll further give McCarthy his due by noting his astute observation of the rather clever timing of the announcement- "the Friday night news dump," when news is released in the interest of burying it from most of the public.
While Dick Cheney should be happy but isn't (and won't be as long as there is a puppy somewhere that isn't being kicked) and Andrew McCarthy is, the Obama Administration needs to look at what its desire to appease the right wing is doing to its overall policy goals of "closing GTMO". Well, I'll make it easy: the Europeans are pissed, and have all but said "We're not taking any of these guys IF YOU DON'T."
So... what's wrong with this picture? Well, nothing if you're even more cynical than I am and believe that the Obama Administration is simply being duplicitous [not even I will accept that premise; I would say the President has realized that he has lots of pragmatic problems ranging from the political to the logistical to keeping an out of control defense and intel establishment under his control to who knows what?]. But if one believes that the Obama Administration wants a serious change in policy, and if for symbolic reasons if nothing else really does want to clean up the moral stain known as "Guantanamo," [and I do] then it's got to play well and get along with others, particularly, the Europeans and anyone else we'd like to cooperate with respect to taking GTMO residents. [And did I mention that Harry Reid can kiss my ass?]
Well... which is it going to be, Mr. President? We can appease the basest and stupidest xenophobic elements here [alas, including most Democratic Senators], or we can start to make the substance of cleaning up the mess consistent with its symbolism, and do our share to clean up the mess WE MADE, and continue to add to. This has been, "Cross-purposes."
That phrase pretty much sums up my feelings towards the not particularly surprising nomination of Judge Sonia Sotomayor to be the nation's next (and first Latin American) Supreme Court Justice. Not exciting-- but certainly competent, and nothing to be the least bit disappointed in.
If confirmed, which is all but a certainty, she will become the sixth Catholic on the High Court (joining Roberts, Scalia, Kennedy, Thomas and Alito) and the eighth non-Protestant (joining Breyer and Ginsberg) as President Obama continues the recent trend to eliminate all Protestants on the High Court, so that we have a Supreme Court that looks like New York. And let's face it, with a coupla Irish, Italians and Jews, and an odd Black, Latina and one aging WASP (89 year old John Paul Stevens)... it kind of does!
While I don't recall personally appearing in front of the good judge during her days on the District Court, others I know have, and their opinions of her range from the haughty to the pleasant, but usually most regard her as very intelligent. Well, she crashed the barrier as the first Latina on the Second Circuit Court of Appeals in New York... and now... the world! By the absurd standard applied to Scam Alito-- she's on the federal bench and attended Princeton and Yale Law-- Sotomayor, with identical credentials (only moreso, with a humble beginnings story of being diabetic and raised by a single mother in a Bronx housing project) is... a veritable shoe-in. (Judge Diane Wood of the Seventh Circuit, btw, the other short-lister, would have been the first person to serve on the U.S. Supreme Court having attended exclusively public institutions; some barriers, it seems, may have to wait.)
The only question is to what extent the Republicans are willing to do to themselves what the Democrats did with foolish opposition to my (and the President's) college classmate Miguel Estrada, to wit, piss off Latinos, with no particular agenda advancement to offset the electoral price. I'm betting they'll take a half-way position, spouting the usual "liberal activist judge" trope and tripe, but lay off too heavy an attack... we'll see.
On the whole, though, a highly conventional pick by our President, a highly conventional politician... the atmospherics of our first Black President selecting our first Latina Supreme Court Justice speak for themselves (and Dubya had an opportunity to select Sotomayor himself, but passed). A solid pick, and another barrier is happily crashed through. No matter how much I may like (or be disappointed in) the President's policies... this sort of thing is an unmitigated good, and I for one am glad to see it.
Perverse as it sounds, it should probably come as a relief to the Obama Administration that it has a conventional nuclear weapons problem with North Korea, a country with a return address where the people who live at it are probably not suicidal psychopaths... and hence, perversely, it should be less worried about today's nuclear weapons test by North Korea. Have you lost your mind, TD?
My reflex is just to say "don't answer that!" Lookit: we are well aware that North Korea has nuclear weapons: it has already conducted a successful test. OK... now we really, really know? Sorry... one should be enough for whatever crazy ass scare value Kim Jong Il and the gang want. Fine, China, Russia, President Obama and everyone else rushed to condemn the blast. Great! So what? More sanctions? Isolate North Korea? Simple answer to North Korea: any proliferation of fissionable material anywhere in the world will be deemed your responsibility, as if Pyongyang launched the strike itself (i.e., the North Korean regime can expect massive retaliation up to probable obliteration should any terrorist group or any otherwise unexplained nuclear detonation happen anywhere on Earth. If such a message were seriously conveyed to Pyongyang... I think our concerns (not so much that DPRK would launch its own strike, but that it would sell fissionable material and weapons technology on the black market) would be addressed just as well. Just saying.
So... what remains troubling? That's right: either Iran, or Pakistan. First, Iran, where, although we know Ahmadinejad is not really in control of much, let alone Iran's nuclear program, and we are reasonably sure the ayatollahs really in charge don't want to die in a massive Israeli counter-strike should they acquire and try to use nuclear weapons... somehow, given how happy they are to have Ahmadinejad as a front-man, I'm just a little less convinced of their sanity than I am the North Koreans, who, let's face it, are pretty much just holding out for a bigger bribe.
And the real wild card, and most dangerous situation on Earth, remains the Taliban and Pakistan and Pakistan's nuclear weapons: there's a bunch of bastards that have never given anyone a reason to trust their rationality, ever.
So... of all of these issues, it seems to me, that North Korea is by far the least worrisome. The fact is, on that one, Obama will find most of his options reduced pretty much to "whatever China wants." Which, at least, makes one's life a bit easier. OTOH, an open channel to China re: Pakistan and its nukes would be extremely useful right now, as China also pretty much holds the keys to that... situation... as well. Make the call, Barack... try to ignore the highly unreliable "Mr. 10%" Zardari... the key to Rawalpindi is in Beijing.
Just another day in the Oval Office, I suppose... so many possible catastrophes, so little time...
I have little to add to Andy's comments about the President's speech on national security and the future of GTMO. Among alternatives discussed were "preventive detention" [without trial of course]; GTMO already is "preventive detention" without adjudication (an "alternative" as suggested by the President), and it is the best recruiting tool al Qaeda ever have. The commissions, which he proposes to restart, are, of course, very problematic as well. But the tone of the President's speech, including reiterating the commitment to close GTMO, and the atmospherics of the National Archives... were pretty good. What else can I say (other than does it get any better for the President's political fortunes than being denounced by Dick Cheney?)
I will just say that I have finally, finally had it with Harry "Crap-in-his-pants-over-terrrrrrrrorists-being-imprisoned-let-alone-released-stateside" Reid. He has earned all of our contempt, he has earned a primary challenge, and his opponent, whoever he or her is, has earned my commitment to donate at least $50 to their campaign, regardless of party. As a Democrat, the greatest service we can do for our party and our nation is to send that cowardly, feckless asshole (who never EVER fails to cower whenever the Republicans say "boo") packing, once and for all, and to help Nevada voters to do it. There, I said it.
BTW, the "terrrrrrorists" at GTMO that Harry is scared sh*tless over are winning over 86% of their habeas corpus cases, meaning our courts have concluded that there is no evidence that they have done anything warranting their continued detention, at GTMO or anywhere else.
Ultimately, we all have to face up to the fact that we are living in a society built largely around certain organizing lies ("tax cuts mean the government will collect more money," "GTMO is full of terrrrrrrorists," "socialized medicine is eeeeeeeevil," "the rich and powerful are above the law", "driving SUVs and living in McMansions is our God given right", etc.) that our sheeple will take at face value, just because they hear it enough times. Heck... it's on t.v.... so it must be true!!! At some point, we'll have to either face up to all of this... nah, let's continue the fantasies... including... "Fearing fear itself."
Update: (23 May 2009) William Glaberson, writing in the Grey Lady, addresses a number of the difficulties associated with "America's legal tradition" presented by prolonged "preventive detention." Hint: the practice, even if actually codified by our worthless Congress, would be brazenly unConstitutional, and would demonstrate once and for all that we have irreversibly crapped in our pants (i.e. "the terrorists will have won"). Just saying.
Ramzi Kassem is a Lecturer in Law at Yale Law School. Mr. Kassem previously served as an Adjunct Professor of Law at Fordham University School of Law, where he co-taught the International Justice Clinic that represents Guantánamo Bay detainees. As a Civil Rights Fellow at Cochran Neufeld & Scheck, Mr. Kassem litigated high-impact cases stemming from wrongful convictions and police misconduct. He has also worked as a legal consultant for the International Center for Transitional Justice in New York City. He is a graduate of Columbia Law School, the Sorbonne and Columbia College. Mr. Kassem represents many current or former prisoners of American detention facilities at Guantanamo Bay, Cuba or Bagram Air Base, Afghanistan. This coming Fall, Mr. Kassem will join the law faculty at the City University of New York. On May 5, 2009, I had the privilege of interviewing Mr. Kassem by telephone; what follows are my interview notes, corrected as appropriate by Mr. Kassem.
The Talking Dog: Where were you on September 11, 2001?
Ramzi Kassem: I was in New York City. It was the beginning of my second year of law school. I was on my way to do some journal work, when I passed the fire station on my block; the firefighters were suiting up to go down to the World Trade Center. One of them said that a small plane had crashed into one of the towers. The singer Aaliyah had been in a Cessna crash just before, and that was still on people's minds. I later heard that a few guys from that firehouse never made it back.
I continued on to the law school, where I heard and saw what was really happening. I tried to track down friends I knew who worked at the World Trade Center. Later that day, I gave blood and volunteered at the Red Cross taking calls from non-English speaking people with relatives working at the World Trade Center.
The Talking Dog: Please identify your clients, by name, nationality, and current location ("re-patriated to Yemen," "Camp 6, Guantanamo," "Bagram AFB", or whatever is appropriate) and tell us something of note about your clients' personality or anything else you believe appropriate. Can you tell us any specific allegations of abuse your clients assert they have suffered?
Ramzi Kassem: Over time, with my students and colleagues at Fordham and Yale, I have represented a number of men. They are: Saleh Al Khathami, Saudi, repatriated to Saudi Arabia from GTMO; Fahd Al Fawzan, Saudi, repatriated to Saudi Arabia from GTMO; Ali Muhammad Nasser Muhammad, Yemeni, repatriated to Yemen from GTMO; Sanad Yislam Al Kazimi, Yemeni, imprisoned at GTMO; Mohammed Al Shimrani, Saudi, imprisoned at GTMO; Mammar Ameur, Algerian, repatriated to Algeria from GTMO; Ahmed Zaid Salem Zuhair, Saudi, imprisoned at GTMO; Ahmed Mohammed Ahmed Al Darbi, Saudi, imprisoned at GTMO; Amin Al Bakri, Yemeni, imprisoned at Bagram, Afghanistan.
All of my clients have interesting stories; it's somewhat hard to pick any one in particular. They were captured in a variety of places-- the United Arab Emirates, Pakistan, and Thailand, among others, and in a variety of circumstances-- some were U.N. registered refugees in Pakistan, others were traveling on business to Pakistan or Thailand. The stories of these men are emblematic of the flawed and expansive American detention policies implemented since September 11th.
The Talking Dog: Can you tell us the status of your clients' litigations?
Ramzi Kassem: In Mr. Zuhair's case, we are headed towards a merits determination, which is now set for June 30th. Mr. Zuhair will have his day in court after 7 1/2 years of detention, and on the 4th anniversary of his hunger strike (which he began in June 2005). That tells the story of the entire mess in one sentence. The Bush Administration, and now the Obama Administration, have, despite numerous major losses in the Supreme Court, continued to have their way with the men they are holding.
With respect to Mr. Al-Darbi's case, we are waiting to see what the Obama Administration will do with respect to the military commissions. Will the Obama Administration abandon Mr. Al-Darbi's case, in favor of release? Will it choose to re-vamp the Commissions? Or will it bring back the Commissions in the way they were before, quite intentionally set up to use evidence extracted through torture? Indeed, the only evidence against Mr. Al-Darbi were his own statements, obtained through cruel and degrading treatment and torture, and there are multiple witnesses to that horrible abuse. We are now at the point of finding out if the Obama Administration will adopt some of the less savory features of the Bush war on terror doctrine—including the use of statements obtained through torture, normally inadmissible hearsay, and secret proceedings that exclude the defendant and his attorneys. The military commission judge ordered a pre-trial hearing on May 27th after the government had requested a delay until May 20th—four months from inauguration. The stay ends on May 20th. On May 27th, we're back before the military judge to argue pre-trial matters. If it goes forward, it would be the first military commission hearing under the Obama Administration. Our last oral argument occurred on December 15th, under President Bush.
The Talking Dog: My understanding is that you are a Lebanese-American, with a significant part of your family in Lebanon. As such, can you tell us your "gestalt" feeling about American detention policy, as practiced at Guantanamo, Bagram, Black prisons, Iraq, everywhere else (including our suddenly burgeoning immigration detention operations), and in particular, how you would address perceptions (do you accept them, for example) that "the war on terror" is widely perceived as some kind of broader war against Islam or at least against Muslims? Can you tell me your view of the perspectives of Muslim Americans, and Muslims abroad, as to how they view these policies and "the war on terror" (and how, if in anyway, President Obama's election has changed this)? Any thing you'd like to see from the Obama Administration with respect to this?
Ramzi Kassem: I would self-identify as an Arab-American and a Muslim-American. My sense of the perception abroad is that the war on terror has certainly been accepted by some as an ideological war against Islam. The more prevalent view, however, from what I’ve read and seen, is that the war on terror was a blunderbuss reaction to September 11th, an indiscriminate overreaction. Most people abroad that I know do not seem to view it as an ideological war on Islam, but rather as a knee jerk and heavy handed response against a region and a group mistakenly held responsible as a whole for 9-11.
People abroad—and I'm talking not just about the Muslim community—have come to the realization that many of the detainees—whether held in immigration raids, at black sites, Guantanamo, Bagram or wherever—were swept up in a dragnet deployed by the United States after 9/11 and targeting Muslims deemed out of place in one way or another.
With respect to President Obama, people overseas seem still hopeful that there will be a departure from President Bush’s policies. But they are paying close attention to what he does, and with every choice not to depart from President Bush’s policies—secret evidence, detention policy—the international community grows increasingly skeptical.
For now, at home at least, President Obama is still in his honeymoon phase with most people, but those, like me, who represent men imprisoned for years without charge or trial, tend to be more critical of President Obama. We've seen far more continuity with President Bush’s policies with respect to our clients than most people are aware. To give but one additional example, detention conditions have not improved either, and hence, it is hard to wax eloquent about the progress President Obama has brought to the scene when you then sit down with your client for hours at Guantanamo and he describes all the ways in which hope and change have been absent from that prison camp.
The Talking Dog: Tell me about Ahmed Zuhair... specifically, what you can tell me re his current condition as you know it, whether he is being force-fed, and notwithstanding that he has been "cleared for release" whether his jailers apparently intend to relent in their treatment of him? How have the courts responded to his situation?
Ramzi Kassem: Yes, there have certainly been developments in his case in the conditions of confinement area. Of course, these developments are not by the grace of the Obama Administration, but have been the direct result of court rulings and advocacy pressing the government to desist. Last week, a court ordered the government to inform us and the court if it intends to revert to force-feeding Mr. Zuhair in the restraint chair. They've been using a bed of late. Mr. Zuhair is the longest-running hunger striker at Guantanamo and, over time, we have managed to document the deleterious effects on Mr. Zuhair's health from use of the chair rather than the bed. We also got a report by a court-appointed independent medical expert who traveled to the base and examined Mr. Zuhair for a week. The report showed that, indeed, his health was suffering from the chair—which Mr. Zuhair refers to as the “torture chair.” Frankly, there never was a real need for the chair to be used on Mr. Zuhair. The Bureau of Prisons' regulations provide that such restraing chairs are only for mentally incompetent or physically resistant prisoners, and the government has long conceded that Mr. Zuhair was never recalicitrant or combative, but staging a passive protest in response to his indefinite imprisonment without trial. While we're somewhat pleased that he will be force-fed a little less cruelly than the government might otherwise go about it, what limited progress achieved in this regard comes after long years of brutal treatment endured by Mr. Zuhair and it comes via court action, not by benevolent executive fiat.
The Talking Dog: You recently were quoted in a Politico piece suggesting "six reasons why GTMO policies won't be changed so soon"... let me follow up on what I see as a troubling trend, that toward emphasis on things that politically sound good such as nomenclature (EC's won't be called EC's anymore; "close GTMO within 1 year," GTMO is now fully Geneva compliant because the United States doesn't torture, etc.) while actually maintaining and continuing Bush Administration policies... what's your view of the likelihood of actual substantive change of the United States government's detention policies, say, on admitting "cleared" detainees to the U.S. who can't be sent home (e.g. the Kiyamba case), state secrets, or investigating (let alone prosecuting) miscreants in the former Administration? Since you are a member of a law school faculty, can you give a letter grade (or perhaps "incomplete") for the Obama Administration thus far on these issues?
Ramzi Kassem: So far, the Obama Administration has taken some interesting steps. On the one hand, it has pledged to close GTMO, and undertaken an executive review of detentions. But it has taken no real, concrete steps to improve matters. Indeed, in what concrete steps it has taken—continuing the assertion of state secrets, denying that Bagram detainees such as my client Amin Al-Bakri are entitled to habeas review—the Obama Administration has resembled the Bush Administration. The reason this is most disappointing resides not only in the contrast it reflects between candidate Obama and President Obama but because of what it might mean going forward.
What the Obama Administration does now to advance or roll back Bush-era policies will likely shape the world for decades ahead. The Bush Administration was widely regarded, even by Republicans, as an outlier. The Obama Administration had a golden opportunity to disavow the extremism of the Bush Administration. By adopting Bush-Cheney policies, even in a limited fashion, President Obama would be reaffirming that these extreme policies will remain a long-term or perhaps even permanent feature of our country's participation in the world. And so the most disappointing part of recent weeks' events is the seeming adoption of many Bush-Cheney policies.
From a grading perspective, I'll use the Yale Law School's system. We have 4 grades here—Honors, Pass, Low Pass and Fail. An open secret is that one must really go out of one’s way to perform so poorly as to get a Low Pass or a Fail. In my view, the Obama Administration has gone out of its way, so I give it a "Low Pass."
The Talking Dog: Please tell me your impressions of GTMO "the place," the physical space, the aura, the people you encountered, anthing else that comes to mind, and if you could, differentiate it from the typical experience of visiting Congress members or journalists?
Ramzi Kassem: Members of Congress and journalists are typically taken on a Potemkin Village tour; they are certainly not permitted to have any direct interaction with prisoners. Of course, they will see some facilities, which appear clean and orderly. The problem with GTMO is, of course, not the "hardware", but the "software": what is being done to the people in this place, not the structures themselves and their apparent amenities. Congress members and visiting dignitaries only get the captors' perspective.
This of course was exactly the problem with President Obama's order directing a review of whether GTMO was "Geneva compliant." We can even leave aside the obvious conflict of interests created when President Obama asked Secretary of Defense Robert Gates—the man responsible for operating GTMO for years under President Bush—whether his own operation complies with law and treaty. It should come as no surprise to anyone that Secretary Gates found his operation to be in full compliance. What is needed for any such report to be credible would be systematic interviews with the prisoners about their treatment—indeed, prisoner interviews would form the principal part of any such process undertaken in any other country. Not only should the President have ordered an independent inquiry, the inquiry should have included systematic interviews of the prison population about conditions. That didn't happen.
We lawyers have a different perspective. Unlike the dignitaries and journalists, we talk to the prisoners who have been there since 2002 and who can actually tell us what has happened to them. From my own perspective, GTMO is jarring. I must say I am seldom happier than the moment the plane takes off and I am on it. On the one hand, the place is in a nice, pristine corner of the Caribbean, unsullied by tourism or pollution. But its physical beauty is in stark contrast with its symbolic weight and the experience of the horrors that went on there as articulated by my clients. This juxtaposition makes the place especially unnerving. On that level, it embodies the Bush Administration’s favorite ploy of holding out one thing to the world while really meaning something altogether different. GTMO's physical beauty and its apparent orderliness are given the lie by a reality that is atrociously different.
Needless to say, I love sitting down and talking to my clients. But it has been horrifying to visit and work in a place that encapsulates post 9/11 policies. The Orwellian phrases we have all come to know—"enhanced interrogation," "extraordinary rendition"—come to life at Guantanamo. That contrast between the place’s beauty and barbarism is what makes so deeply unsettles me about the prison camp.
The Talking Dog: Since, like me, and your former colleague Martha Rayner (whom I interviewed last year), you are part of the media market here in greater New York; as such, can you comment on your view of how the local, national, and international media have performed with respect to these issues? How do you think this has effected public perceptions, if it has?
Ramzi Kassem: All media—broadcast, print, internet—have played an important role in explaining what has been going on. I will say that where I fault the media is in pressing for facts. The media has been too uncrticial, for example, of accepting repeated government assertions that the men at Guantanamo are "the worst of the worst". The media should never have accepted language like that without demanding facts and concrete proof that such characterizations are justified. How do we know that these assertions are true? Unless questions are systematically asked, and answers demanded, the press risks becoming a willing vehicle for the advancement of political agendas and the dissemination of politically charged messages, and it loses its ability to function as a pillar of our democracy, as a fourth branch of government.
That is the single area where the media has been disappointing. While it has done a great deal of good in disclosing many aspects of this story, far too often, it has not pressed for details and facts; far too often, it has contented itself with unsubstantiated generalities, without engaging in the kind of probing one would have hoped to see.
The Talking Dog: Given that it has a sui generis nature (or does it?), can you describe how the Guantanamo litigation has functioned as a pedagogical exercise with respect to your current students at Yale and your former students at Fordham? And how has the Guantanamo litigation experience effected you--personally, career-wise, or any way you'd like to answer?
Ramzi Kassem: It has been challenging for a number of reasons, to be sure, both from the substantive standpoint—the doctrinal complexities raised by these cases—and as a teaching exercise. I would hope that it has been a worthwhile and edifying experience for the students involved, and that it will shape their world view and, ultimately, their law practice and their careers. I certainly hope for our society and our world that the GTMO-specific skills of representing individuals held in legal black holes and of total fluency in the nuances of torture are "sui generis" and that they will not be exportable in any direct way. At the very least, I hope that my students, enriched by their work on these cases at the very beginning of their legal lives, will be the ones to prevent a repetition of this tragic episode in our nation’s history and in world affairs, should it come to pass again.
As for myself, when I was in law school, I wanted to go abroad to focus on international humanitarian law work or rule-of-law related issues. The irony is that in the aftermath of 9-11 and Guantanamo, I ended up working on precisely those issues... only not abroad, but in the United States!
The Talking Dog: I join all my readers in thanking Mr. Kassem for that interesting and enlightening interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutor Darrel Vandeveld, with attorneys George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with Joanne Mariner of Human Rights Watch, and with Almerindo Ojeda of the Guantanamo Testimonials Project, to be of interest.
I have to say I have nothing but admiration for the President's choice of a Republican, Utah Governor Jon Huntsman as ambassador to China. Just as he brought in his chief Democratic rival Hillary Clinton as his Secretary of State, now he brings Huntsman, the national campaign manager of his Republican opponent Sen. John McCain, to serve in just about the most important diplomatic post I can think of, as China is not merely (1) the most populous nation on Earth with (2) the fastest growing economy, but it also (3) props up our economy by continuing to buy up our debt through the massive trade surplus it runs against us, and it is also (4) our major strategic geo-political rival, not so much in a Cold War sense, but in the sense of China being so much more rational and intelligent in its resource acquisition arrangements compared to us (and (5) that Taiwan thing).
But the President is not merely handing that portfolio to a Republican: he is handing it to a reasonably moderate Republican who was touted by some as the likely strongest Presidential candidate the Republicans might have had in 2012. And Huntsman is actually a good choice anyway! He's served in diplomatic posts before, and he learned Mandarin Chinese while on a Mormon diplomatic mission.
The Republicans' second-best Presidential candidate, Mitt Romney, is also a Mormon, and would obviously carry Utah should it come to that, but even he would find it hard to argue with some of Obama's personnel choices (like this one!)
As I continue to chide the President's policies in his inexplicable decision to continue the Bush Administration's policies in such areas as state secrets, adherence to the rule of law, investigating torturers and the like, we must give the President his due in other areas, such as atmospherics, co-opting likely rivals, his cancellation of the "reliable replacement" nuclear warhead program that might (I don't expect it to, but it might) dramatically alter America's commitment to being capable of obliterating the rest of the planet, and social spending (which I'm supposed to like, I suppose).
The President is a careful man: that's how he got to where he is, by not engaging in the kind of dramatic "change" he seemed to be campaigning for; let's face it-- if he weren't, he wouldn't have gotten this far. Watch what we do, not what we say. "Change" (IF ANY) will be incremental. At least we have a smarter cookie in charge than we have had recently; the selection of Huntsman sure shows that. This has been "Macchiavellian Olive Branch."
And so, the Obama Administration completes this week of full-about-toward-tyranny, by announcing the intention to resume trials of GTMO detainees by military commissions. As I've said recently, I'm more disappointed than surprised; former GTMO prosecutor Darrel Vandeveld, frankly, saw the wind blowing this way in my interview with him, insofar as he made a number of suggested improvements and procedures for the commissions to make them fair (something Col. Vandeveld, responsible for around a third of outstanding commission prosecutions, concluded was impossible under the system as he found it).
The devil remains in the details; supposedly, there will be preclusion of coerced testimony and "some restrictions" on hearsay... though, one wonders why the Administration would bother adopting a policy that candidate Obama railed against during the campaign for questionable benefits (i.e. convictions would presumably be harder to obtain than under the kangaroo court rules of the Bush Administration).
Perhaps, the President is showing "pragmatism"... perhaps Macchiavellian grandmaster cravenness in support of a broader goal... perhaps this is a massive misdirection, as he doesn't really care anyway, while he does his grandmaster moves of imposing single-payer some kind of better health-care plan, and deficit spending and stimulusing and sh*t... Or maybe he's willing to go with the flow, and ignore the simple reality: we're holding a bunch of mostly innocent nobodies, some of whom underwent vile and unforgivable tortures at the behest and sanction of our highest government officials (officials who will almost certainly evade accountability for those vile and unforgivable tortures that they directed, tortures, it seems, not for acquiring "actionable intelligence," but for the purpose of gaining traction for entry into an unjustified, discretionary war of opportunity that has killed countless thousands, maimed countless tens of thousands, displaced millions, and bankrupted our treasury... but I digress...)
The scorecard speaks for itself: 240 men still at GTMO, only one of whom has been convicted of a crime, and that, after standing mute at his prior commission trial under the old and lousy system (the system that the Obama Administration has promised to replace; two others, convicted under the old and lousy commission system, were convicted of crimes deemed sufficiently unimportant by military judges and juries to have been released and repatriated). Of the remaining 239 men, 29 men have had habeas corpus petitions reach decision, and of those, 25 have been found to be held unlawfully, or 86.2%; extrapolating that to all of the 239 men takes us to 206 held unlawfully, 33 held lawfully... interestingly, of course, this number-- well within the two to three dozen range, including the "14 high value detainees"... has been a more or less consistent estimate I have heard or read about from numerous sources. [We'll leave out the nearly 500 men released by the Bush Administration, only two of whom had trials (both convicted, btw, as noted above, but still released). ]
Of course, even this two or three dozen guess may be deceptively high, because the four detainees found not to be unlawfully held were so determined by Judge Richard Leon who, despite being the first judge to grant habeas petitions and the first judge whose habeas petitions resulted in release, has still been more willing to accept broad assertions of legality of detentions than any other judge, Democrat or Republican appointed alike, that has decided these petitions to date. So, that said, even this 25-30 may be high; indeed, the 14 "high value" detainees... may not be what the no-credibility Bush Administration has told us they are. [Honestly, boys and girls... when has Dick Cheney ever told us the truth about anything? Why should we believe him ever, on anything? I mean... you tell me?]
Anyway, there you have it. The grand plans to close GTMO in one year... are unclear at best, unless we pick up the pace of releases (detainee Boumediene was just returned to France, thereby doubling detainees released during the Obama era, to a pathetic two.) Not that anyone who didn't support President Obama cares; the only people disappointed by all this are those who, of course, did support the President during the campaign, and looked forward to a restoration of respect for the rule of law.
Well, what can you do? Maybe the Obama Administration will screw around some more with an additional stay request while it figures out what it is doing. And men already arbitrarily held for years for no reason, while their own lives continue to be interminably disturbed and American prestige, reputation and respect for law continue to languish (and terrorists continue to have a potent recruiting tool)... yes, that's a good bet... I'm betting on more screwing around.
This has been... "Full About."
Update (5-17-09): What Frank Rich said.
We'll start with this amazing piece in the Washington Note by Col. Lawrence Wilkerson, former chief of staff to Colin Powell, who takes Dick Cheney to utter task over the former veep's pronouncements regarding the effectiveness of torture, scooping, perhaps everyone on Earth, with the following:
Third--and here comes the blistering fact--when Cheney claims that if President Obama stops "the Cheney method of interrogation and torture", the nation will be in danger, he is perverting the facts once again. But in a very ironic way.
My investigations have revealed to me--vividly and clearly--that once the Abu Ghraib photographs were made public in the Spring of 2004, the CIA, its contractors, and everyone else involved in administering "the Cheney methods of interrogation", simply shut down. Nada. Nothing. No torture or harsh techniques were employed by any U.S. interrogator. Period. People were too frightened by what might happen to them if they continued.
What I am saying is that no torture or harsh interrogation techniques were employed by any U.S. interrogator for the entire second term of Cheney-Bush, 2005-2009. So, if we are to believe the protestations of Dick Cheney, that Obama's having shut down the "Cheney interrogation methods" will endanger the nation, what are we to say to Dick Cheney for having endangered the nation for the last four years of his vice presidency?
In other words, the timing of the torture seems to be consistent with what we have come to learn, as our friend Andy Worthington tells us so succinctly in reviewing Col. Wilkerson's comments, was that the main purpose of torture, it seems, was not to gather "actionable intel," but to gather a justification for invading Iraq, in this case, by torturing "confessions" of a Saddam/Al Qaeda link and/or a Saddam WMD cache out of whoever happened to be in custody at the time this justification was needed.
Well... what you gonna do?
And, with the yin of the entire torture-regime that needs punishin' snapping into focus, we get the yan of Al Giordano telling us, in effect, to "get over it," because "the law" is a rather ineffective policy tool, especially when directed at the powerful... while I agree with his immediate sentiment re the story du jour of the 39 or so detainee abuse photos, I disagree with Al on the merits of prosecuting the torturers, of course (in the strongest terms, btw; the lawlessness of this era made Watergate and Iran-Contra look like nothing, and hence, I utterly reject his analogs), but he has some extremely interesting and pragmatic views, and I certainly do agree with him as far as the likely outcome. Al does point out some very interesting things that the President is doing (such as quietly terminating the United States's nuclear arsenal, over the objections of his SecDef), in part, to prevent the military and intel communities from "going rogue". I am trained and schooled in the law; Al is trained and schooled in hard-knocks and reality. As far as outcomes, I would bet on his (i.e., give up the prosecutions people... not gonna happen...) And I admit part of my thinking is about a fantasy of this country being truly exceptional... not the fantasy many right-wingers have of magical American exceptionalism because we're rich and mostly WASPs, but because we have a set of rules and principles and we follow them. Further, our embrace of torture really has endangered our military personnel, as duly noted in this amusing piece at Balkinization (h/t to Bonnie).
Well... there you go. This has been "Tortured reasoning."
You know, I certainly supported the President in his campaign, and I readily admit, I was taking a flyer: Barack Obama was an enigma, and I, just as was the case with almost all of his other college classmates in Columbia's class of '83, didn't know him in college, and quite frankly have learned little if anything of the man since (other than what he wrote in his own memoirs, which, btw, are in an interestingly detached tone).
That said, it would really be out-of-bounds for me to say that I'm terribly disappointed by today's "in your face" to me, and those miillions of others that supported him somehow expecting some improvement in our polity, to wit, the President's reversal or a prior commitment to release detainee abuse photographs in response to an ACLU lawsuit seeking their disclosure. The ACLU's response is that this makes them very angry... very angry, indeed. And I think Andrew Sullivan kind of nails it with his suggestion that, given policies vis a vis Afghanistan and toward stonewalling ultimate accountability for the prior crimes of the prior Administration, President Barack Obama appears to have been co-opted by Dick Cheney, and by in effect serving as an accessory after the fact for war crimes, effectively commits his own. Sully also notes that newly appointed commander-of-theater in Afghanistan General Stanley McChrystal, who may have had a role vis a vis torture in Iraq. Worse yet, the stated rationale of today's stonewalling is that it will somehow "harm our troops" if we behave the least bit transparently, and show abuse that the world is damned sure existed anyway (though the American people may be forced out of some level of complacency in their faith in "a few bad apples.") Well, well. So much for "hope" and "change". Certainly, we were entitled to "hope;" it seems that the "change" was more than what we were entitled to hope for.
In short, those of us who supported the President and hoped for better, but aren't seeing it, have the absolute right to be disappointed, but absolutely no right to be surprised. Indeed, we really didn't have a right to expect anything at all, including that the President would keep, or even try to keep, some of his core promises. And indeed, he hasn't quite broken all of them yet... he still has nearly eight months not to close Guantanamo, for example. [On that, for example, I remain cautiously optimistic that "the executive review" will start concluding that most of the men held there should be released; OTOH, I'm not holding my breath, and I understand that most habeas corpus counsel are pressing on with their court cases rather than surrendering their clients' fates to executive whim and caprice.]
And so, what we have seen thus far... continues. The rhetoric about transparency and accountability is wonderful, and we're delighted to hear it. In the meantime, I still see virtually unchanged policy on state secrets, applicability of habeas to Bagram and other lawless gulags (besides GTMO), only one GTMO prisoner released despite now dozens "cleared" by courts, and in general, policies much closer to the Bush Administration's than anyone would care to admit. Sure, we have a massive infusion of deficit spending, including some social spending that may or may not pay off in terms of "stimulus", not to mention humongous transfers of taxpayer money to compensate financial institutions for their own mismanagement. And maybe we have some populist reining in of credit card issuers, who only brought it on themselves with their outrageous behavior since the credit crisis (wantonly raising rates, slashing limits, closing accounts, etc., even when the subject banks were well-capitalized). And perhaps, someday, we'll see... progressive taxation again? Just saying...
But by and large... other than rhetorically and in terms of personnel (which is not nothing, to be sure, though it is not much), I'm at somewhat of a loss to see how things would have been terribly different in a McCain-Palin Administration, or for that matter, a third Bush Administration; Justice Souter, for example, might not have announced his retirement, I suppose... but he's hardly an old man, and he could have waited a bit; Justices Ginsberg and Stevens, will probably announce their retirements later in Obama's first term... and I agree, at least that would be "a change". Of course, we wait to see who the President will name. The irony, of course, is that Obama's greatest accomplishment may be to appoint the very judges who are forced to rein in his own plans for executive excess (or at least to continue the excess of his predecessor).
Oh well. We'll just have to wait for the detainee abuse photos. This has been "More of Same."
The Chicago Tribune runs this lengthy feature, prominently devoted to the good work of Candace Gorman, whom we are proud to call our friend.
Happy mothers day, to Mrs. TD, TD Mom, TD Mother in Law, and all the other moms out there.
Happy birthday, belated to TD Niece (now... is it 3 already?), and, not belated, to TD Dad.
And so, we see the reanimation of an idea once derided by a Presidential candidate named Barack Obama... but in the cold political reality of his being President, and doing his job with an absurd predilection to try to satisfy the unsatisfyable right-wing critics while screwing his own most ardent supporters wherever possible, the reanimation continues... and hence, we see that the Obama Administration is proposing to reanimate the once-thought-to-be-dead military commissions. And careful with those brains, people... I hear zombies don't like to chew through tinfoil... just saying...
In other Zombie news, it appears that a number of zombie banks managed to convince federal authorities to ease up on capital requirements to make them look better... nothing like a public-private partnership concerning the regulation of the private entity itself; should give the public plenty of confidence in that whole process. [In other zombie news, Mike Huckabee warns that the GOP could go the way of the Whigs... let's just say, this isn't at the top of my worries list, and "the party of money"... like many a zombie... ain't so easy to put down!]
Well... the commissions. The trial balloon apparent leak concerning them reveals that "evidence" obtained by torture coercion would probably not be admissible, but "some" hearsay probably would, with the commissions likely to occur on the USA mainland, with, perhaps, another 90-day stay to be sought on top of the 120-day stay already requested and in place.
Look: former GTMO prosecutor Col. Darrel Vandeveld told us, in an interview on this very blog, that:
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.
You got all that? A man once charged with the prosecution or around a third of all commission prosecutions concluded that we can't give these men fair trials.
Fuggedabout it, Mr. President: the commission system is broken. Don't try to pretend it can be fixed. Charge those who can be charged in federal courts; if they end up acquitted, so be it. The value of demonstrating the fairness and transparency of our system will more than make up for any "danger" of releasing "dangerous men"... and quite frankly, how do we even know they were really "dangerous" in the first place, if we don't have enough evidence to convict them in court? Huh? How 'bout that one, Mr. Constitutional Law Professor Lecturer?
This has been... "The grateful undead."
Well, they could be remote shangri-las, or perhaps third-world sh*t-holes, depending on one's perspective, but the Swat Valley and Buner regions of Pakistan, closest points less than two days' walk from Islamabad and nearby Rawalpindi (respectively, political capial and military h.q./ home of nuclear program) of Pakistan, should have the world's complete and total support to shore them up against Taliban onslaught... but this WaPo report makes it clear that things is very, very bad there.
The Pakistani government remains conflicted over whether the cancerous political monster (largely of its own creation and nurturing), the fundamentalist-Sunni Muslim Taliban, are its friend or its foe, and so it keeps simultaneously battling, negotiating and making deals with the Taliban, while its own populace is in the cross-fire, and huge swathes of Pakistan are being destroyed in the process.
Insofar as Pakistan controls around 60 deliverable nuclear weapons, and the bomb-loving Taliban (think of the world-treasure giant Buddhas at Bamoyan that the Taliban enjoyed blowing up) would become the most irrational entity ever to get their hands on nuclear weapons (not to mention their best buddies at al Qaeda)... you can see that this situation isn't merely "bad"... it's potentially Apocalyptic, probably the most dangerous thing happening on a planet whose oceans are rising precipitously thanks to manmade climate change, whose economies are collapsing thanks to decades of financial mismanagement, and who are facing a potential viral pandemic... (not to mention, of course, all the usual stuff.)
Once again, we are obliged to hope that our own neophyte government, and Pakistan's incredibly incompetent and corrupt one, are ultimately up to the task. Logistically, the Taliban aren't significant compared to a standing national military; the problem, again, is Pakistan's internal issues, such as its hopelessly duplicitous ISI intelligence apparatus, its own fundamentalist elements and its corrupt government and military leadership... If it weren't likely to actually increase the odds of an ultimate Taliban victory, one might think that American ground-forces to support the Pakistani military against the Taliban might be a good idea... but... it probably isn't.
What is? Well... I'm not going to be so bold as to make a suggestion; to put it politely, "mistakes were made" with respect to the Pakistanis by American policy-makers thus far. I would strongly suggest, however, that someone in Washington pick up the phone and call someone in Beijing.
It should come as no surprise that after years of being told that their children were in mortal danger of being killed by terrrrrorists and that brutal torture of likely innocent men was the only way to keep them safe from the scourge of Islamo-fascism... a slight (50-46) majority of Americans polled recently believe that the use of such torture was justified.
Naturally, this is given as an explanation of why the Obama Administration will tread lightly on complying with its own obligations at law (and by treaty) to thoroughly investigate official wrongdoing... although politicians will feel free to ignore the fact that the majority of Americans favor single payer health coverage, actual progressive taxation, and lots of other things that the Beltway Wise-persons and Village Elders tut tut and tell us we can't have. And as to polling, we won't talk about what percentage of Americans believe in the Rapture (and I mean later this year) or angels or fairies and leprechauns vs. don't believe in evolution, global warming or that the Earth is round... it would be close to those willing to say torture is justified. And unsurprisingly, the pro-authority Republicans overwhelmingly favor the torture.
But this is irrelevant: the conduct at issue, whether "justified" or not, was illegal, and therefore, the first principle of "no one is above the law" is the issue. No matter how much Americans love their rich and powerful White men.
Somehow, your talking dog managed to avoid the storms traveling up the East Coast just long enough to complete the Cox Rhode Race Marathon in Providence, RI in my standard issue time... representing state 12/marathon 23... Regular readers know that on this blog... it's always about me. Anyway, while many are suffering the agony of either swine-flu or swine-flu like symptoms... I sit in agony as a result of my own actions (including the drive home... through those storms)!
Speaking of agony... we'll talk about agonizing... And we'll move on to one of my obsessions, GTMO, which, Candace may yet be the venue for further kangaroo court trials, as alas, the Obama Administration is seriously considering re-starting the (entirely) discredited military commission system.
And while the Obama Administration does its internal group Hamlet act over what to do (rather than doing the right thing, and pushing for immediate court hearings of those held, so that the innocent rubes and schmos wrongly there can be released, and the guilty transparently punished... as if!)... we learn c/o the Grey Lady that the Bush Administration evidently internally agonized over the torture issue ... but a careful read of the article shows that it wasn't really about concern that torture was wrong (or even illegal!), so much as fear of the possibility that the perps would eventually get caught.
The Bushmen should listen to Dr. Chucky Krauthammer (h/t Bruce the Veep...): he has no such misgivings about torture's importance... indeed, its indispensability. The only agony there is, of course, reading him, and realizing that in some circles, he's an intellectual heavyweight.
Finally, I'm sure that the family and friends of former NFL quarterback, Congressman and GOP Vice-Presidential family Jack Kemp is mourning Kemp's death at 73. While Kemp touted kaka pee pee supply side economics (a/k/a "voodoo economics"), in his finest hour, he teamed up with Bob "Tax Collector for the Welfare State' Dole" to lose to H. Ross Perot Bill Clinton in the '96 election... despite my own vote for the Dole/Kemp ticket (I felt that Dole and Kemp would have had a much harder time enacting the Republican agenda than Bill Clinton did... I believe I was right, and I still stand by that vote.)
Anyway... R.I.P., Congressman Kemp.
Deep sigh. This has been "Agonistes".
Certainly, this occasion purportedly for the workers of the world to celebrate the achievements of the labor movement... may not quite work out that way this year, with riots all over Europe, ostensibly fueled by the financial and economic crisis now gripping the globe. While millions of Americans are feeling the hit here (and indeed, millions have lost their jobs here just in the last few months)... by and large, Americans seem eerily nonchalant about it... just as we seem to be eerily nonchalant about everything else... such as...
Well... we can talk about the financial and economic crisis it self. And so... let me be among the last to comment on this indispensable piece in The Atlantic by former International Monetary Fund chief economist and MIT Professor Simon Johnson entitled "The Quiet Coup: how Bankers Took Power, and How They're Impeding Recovery." The title pretty much says it all, and the point seems obvious: just as the dons of finance have seized economic power in the last decade or two (and I mean "dons" in exactly the sense that you think I do), that economic power is also political power. Which means, the financial sector is the main resistance against the absolutely critical restructuring (and, quite frankly, dismemberment) of the current oligarchy that commands the financial sector, including the prompt downsizing of entities that are too big to fail because quite frankly, such entities are too big to exist. Anyway... the scenarios painted therein are grim: our mega-bankers in the United States are behaving exactly as their counterparts have done in developing economies (think crony-capitalism on steroids)... grabbing what they can at the expense of taxpayers and whatever else they can steal... just like here, and now! [And this is true regardless of fools' rallies spouted by fool/shill journalists.) The fundamentals... ain't good. [We won't even talk about global warming...]
And we can talk about swine flu, which seems to have the crap scared out of public health officials from Queens to Queensland, but is taken with a strange nonchalance by many Americans... indeed, it seems, it is being reported that even researchers can't agree on its severity, which, insofar as that might or might not even be true, in turn, feeds into the rather confused and disconnected overall coverage of this flu, which some officials are treating as an all-out nightmare pandemic, while others (and certainly, most people I encounter in New York, perhaps led by our obsessively flippant Lord Mayor) seem to be treating this all with the total-- and frightening-- nonchalance, with which they seem to treat everything else.
And finally, we can also talk about the apparently significant fighting going on between Taliban insurgents and government forces within sixty miles of the capital. No, no... not Kabul, the capital of perennial basket-case and failed state Afghanistan, but Islamabad, the capital of shaky, but nuclear-armed Pakistan. The thing with the Taliban is, unlike the Iranian mullahs, they have a clear history of nastiness, and indeed, craziness, a history of state-sponsored terrorism... but no history of rationality at all. And these lunatic extremists, with the apparent connivance of a Pakistani establishment that can't quite think of them as "the enemy" (perhaps after so many years of Pakistan's Inter Services Intelligence Agency ("ISI") financing and supporting the Taliban all these years), are within two days' walk of control of Pakistan's capital, with Rawalpindi, home of Pakistan's military command and its nuclear program not much farther.
This last one: the possibility of confirmed psychopaths who enjoy blowing world treasures up, be they the World Trade Center or the Bayamon Buddhas, gaining control of a country of over 100 million people that also controls nuclear weapons. Let me just say that the total nonchalance from all corners... is scaring the hell out of me, anyway...
This has been... May Day... or is it "Mayday! Mayday!"
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