The Talking Dog

May 23, 2013, When in doubt, give a big speech

That would seem to be the standard operating procedure of Barack Obama's public life for some time... and today's "drone speech" (transcript here c/o HuffPo) fits the bill perfectly: the President is back on his heels because of the multiple scandals, in ascending order of actual adverse political impact on him, being (1) Benghazi, (2) the deliberate targeting of the press for illegal surveillance, (3) the GTMO hunger strike, (4) the IRS fiasco, and (5) the fact that his Administration has done nothing other than lie about the actual state of the economy for the last five years (that would be "moribund or worse"), and now that the actual bill for "Obama-care" is hitting hard (and destroying what's left of small business)... and as predicted, the benefits for anyone except large insurers and financial behemoths will be illusory at best... well, hey... it's time for a big speech!

Well, to be sure, in the big drone speech at the National Defense University, the President droned on about drones, which I guess we can take will now be reduced as a military "first option," although as Fred Kaplan notes in this Slate piece, not so much. Drones are here to stay-- the internal loopholes of "imminent threat" mean that they'll keep being used-- and hell, they provide nice "psychological distance" between their operators in Nevada and the victims... somewhere... else. Plus, they're cool and high tech for those non-assassination assassinations (more accurately "premeditated murder") that the President declined to take any responsibility for. Of course, as Kaplan noted, Obama (thanks to the hunger strike-- let's not kid ourselves that this is anything other than damage control for him) did revive at least discussion of GTMO... though as usual, he declined responsibility and blamed Congress, notwithstanding his own ability to veto any restrictions they placed on him, or his remarkably wide latitude as chief executive and commander in chief as it is... and btw... kudos to Code Pink founder Medea Benjamin for heckling Barack (who I suspect won't be at my-- and his-- 30th college reunion next week)... shouting the obvious truth to power, to wit, the exchange apparently went:

“You are commander in chief! You can close Guantanamo today!” Benjamin shouted. “You can release those 86 prisoners!” “It’s been 11 years!” she said. “Let me finish,” Obama pleaded with her. “I love my country. I love the rule of law!” she said as she was finally removed by security. “Abide by the rule of law. You’re a constitutional lawyer!”

Other than the "constitutional lawyer" part, for which there is no evidence, Medea was dead on... Obama's inter-agency task force has already cleared the majority of men at GTMO for release-- only his own personal intransigence (and political cowardice and opportunism of course) is keeping them there.

Anyway... on GTMO, the President had a fair bit of verbiage... (unexpurgated, and as follows):

And that brings me to my final topic: the detention of terrorist suspects.

To repeat, as a matter of policy, the preference of the United States is to capture terrorist suspects. When we do detain a suspect, we interrogate them. And if the suspect can be prosecuted, we decide whether to try him in a civilian court or a Military Commission. During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists whenever we can.

The glaring exception to this time-tested approach is the detention center at Guantanamo Bay. The original premise for opening GTMO – that detainees would not be able to challenge their detention – was found unconstitutional five years ago. In the meantime, GTMO has become a symbol around the world for an America that flouts the rule of law. Our allies won’t cooperate with us if they think a terrorist will end up at GTMO. During a time of budget cuts, we spend $150 million each year to imprison 166 people –almost $1 million per prisoner. And the Department of Defense estimates that we must spend another $200 million to keep GTMO open at a time when we are cutting investments in education and research here at home.

As President, I have tried to close GTMO. I transferred 67 detainees to other countries before Congress imposed restrictions to effectively prevent us from either transferring detainees to other countries, or imprisoning them in the United States. These restrictions make no sense. After all, under President Bush, some 530 detainees were transferred from GTMO with Congress’s support. When I ran for President the first time, John McCain supported closing GTMO. No person has ever escaped from one of our super-max or military prisons in the United States. Our courts have convicted hundreds of people for terrorism-related offenses, including some who are more dangerous than most GTMO detainees. Given my Administration’s relentless pursuit of al Qaeda’s leadership, there is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened.

Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee.
Even after we take these steps, one issue will remain: how to deal with those GTMO detainees who we know have participated in dangerous plots or attacks, but who cannot be prosecuted – for example because the evidence against them has been compromised or is inadmissible in a court of law. But once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.

I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future – ten years from now, or twenty years from now – when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?

Our sense of justice is stronger than that. We have prosecuted scores of terrorists in our courts. That includes Umar Farouk Abdulmutallab, who tried to blow up an airplane over Detroit; and Faisal Shahzad, who put a car bomb in Times Square. It is in a court of law that we will try Dzhokhar Tsarnaev, who is accused of bombing the Boston Marathon. Richard Reid, the shoe bomber, is as we speak serving a life sentence in a maximum security prison here, in the United States. In sentencing Reid, Judge William Young told him, “the way we treat you…is the measure of our own liberties.” He went on to point to the American flag that flew in the courtroom – “That flag,” he said, “will fly there long after this is all forgotten. That flag still stands for freedom.”

Time will tell if actions follow words... but I remember a President with infinitely more political capital than the one we have now coming off a landslide victory and huge majorities in both houses of Congress who made promises to "close Guantanamo within a year..." and he had individualized determinations then... those determinations that concluded (unanimously among the intelligence and defense communities) that the majority of the men he is holding-- and boys and girls-- he, Barack Obama, is personally deciding to keep holding them-- were "cleared for release" as posing no threat to anyone... most of whom are Yemeni... so what is "released on a case by base basis" other than cover to do (more) nothing? Damned if I know.

All I do know is that if John McCain had been elected President, and had (as I suspect he might have) adopted many if not all of the same aggressive, imperial policies as Barack Obama, alleged progressives would be calling for his impeachment, if not his head. But because Barack is on "our team"... we hear crickets chirp, where we should be hearing millions taking to the streets in protest.

Well, well... you'all haven't figured out after 11 plus years that GTMO is a beta-test-- the canary in the coal-mine as to whether our supposed democratic republic can withstand the abuses heretofore reserved for those unfortunates on the fringes of our empire that included things like death squads in Latin America, dictatorships in Africa, assorted dictatorships and "secret bombings" in Southeast Asia and assorted brutality of all kinds in the Middle East and North Africa... well, as we reach whatever stage of empire we are, these "unfortunate" practices are now quite literally being brought home. GTMO has proven once and for all that as long as they are pitched as directed at some sort of racial/ethnic "other" (and foreign Muslims seem to have done wonderfully for this purpose)... well, totalitarianism is a.o.k. Indeed, it no longer takes a 9-11-- just a couple of homicidal (FBI informant?) Chechens, and one of our largest metropolitan areas literally put up with martial law...

Yes... GTMO has been so successful in advancing imperial goals, one does wonder why the President would even joke about shutting it down? [Oops... I guess I've accidentally told you what I thought of the speech there... mybad.]

May 22, 2013, What'll it cost, man... what'll it COST?

Evidently it will cost $450,000,000, or roughly $2.5 million per prisoner to maintain and "upgrade" the prison at Guantanamo Bay, Cuba, according to a Pentagon budget request. Considering 86 or so-- the majority-- of the 166 men still held there have been cleared for release by our own government, that means we'll be spending over $200 million to hold men our government tells us are innocent and shouldn't be there.

The sheer financial cost of political cowardice and national ignorance and apathy mixed with complacency is impressive, to say the least. My prediction remains that Guantanamo will ultimately be shut down at some point not out of some legal or moral epiphany, or even international pressure, but because the United States will simply lack the financial wherewithal to keep it open.

Of course, given the massive prisoner hunger strike that has managed to get GTMO back into public consciousness in the first place, it seems that the government isn't spending all that much on prisoner meals... although quite a bit seems to be being spent on Ensure.

Priorities, folks. We've got to keep our phoney baloney jobs... give the President a harumph!

May 9, 2013, TD Blog Interview with Jan Kitchel

TD Blog Interview with Jan Kitchel

Jan Kitchel is an attorney with the Portland, Oregon firm of Schwabe, Williamson and Wyatt. since 2005, he has represented a Moroccan national detained at Guantanamo Bay, Cuba. On May 7, 2013, I had the privilege of interviewing Mr. Kitchel by telephone. What follows are my interview notes, as corrected by Mr. Kitchel.

The Talking Dog: Where were you on Sept. 11, 2001, and to the extent you can answer, please tell me where your GTMO-detained client was?

Jan Kitchel: I was at home (in Portland, Oregon), and getting ready for work. According to my client, he was living on the outskirts of Kabul, Afghanistan.

The Talking Dog: Please identify your present and former GTMO-detained client or clients by name, nationality, and current whereabouts. To the extent you can, please tell me something about your clients, such as their age, family status, personality, circumstances of their capture, or anything else you believe of relevance.

Jan Kitchel: My client is Younous Chekkouri, a Moroccan national. He is in his early 40's. He was picked up in Pakistan in late 2001. He had left Afghanistan, and traveled to Pakistan, where he was arrested by Pakistani police, and we assume that he was given over to American forces in exchange for a cash bounty.

The Talking Dog: Please tell me the status of his habeas litigation, be it "habeas petition pending,"petition denied and appeal pending" or whatever else is applicable, and to the extent applicable, if you can identify who the judge involved is and if there is any published decision or decisions of note.

Jan Kitchel: Although Younous has been cleared for release (or "transfer"), his habeas case, as far as I know, is not stayed. I understand that the district court judge (Judge Friedman) still has the case under advisement. The habeas hearing is complete.

The Talking Dog: Can you please tell me the last time you visited your client at Guantanamo, and can you describe the circumstances of your visit. If you could, can you contrast that visit with what you found at earlier visits, including the condition of your client(s), the restrictions on you as counsel and on your clients during your visit, the condition in which you found your clients, and anything else you believe relevant.

Jan Kitchel: I was last in Guantanamo about two summers ago-- and that is the last time I spoke with Younous in person, though I do communicate with him in writing from time to time. He was healthy, and in good physical and mental condition at that time, considering the fact he’s been in prison since 2001.

The Talking Dog: Can you tell me if your client is participating in the present hunger strike, and whether they have participated in prior hunger strikes? Is there anything of relevance viz a viz detainees' grievances, or the military's treatment of the prisoners, or anything else of relevance that you can tell me about that situation, including, if possible, the current condition of your clients, as far as you know?

Jan Kitchel: That is not something I can comment on.

The Talking Dog: Can you tell me, in light of the subject of the recent letter you signed on to directed to Secretary of Defense Chuck Hagel, whether you believe the government's recent (increasingly repressive) actions at and involving Guantanamo are a pretext by the government, for example, to cut off adverse publicity from GTMO, or perhaps to intercept communications between prisoner and counsel? Why do you think the government relented toward getting the flights reinstated?

Jan Kitchel: My answer to the bulk of this is "I don't really know." As each military administration at Guantanamo changes, new guards and new commanders, entirely unfamiliar with what is actually going on there, are brought in, and initially, given what they are told, they get fearful and try to clamp down. Unfortunately, any change in administration leads to a tendency to do that.

At present it is unknown if the current pressure that has led to the unrest there is coming from any higher than the base commander. I truly don't understand why conditions at Guantanamo have been getting worse under the Obama Administration, but they are. My view on the overall situation is colored by the fact that my client is one of the nicest guys you will ever meet-- he is an easy going man-- religiously devout but by no means zealous or extremist-- just the nicest guy to sit down and talk to. I was very pleased a couple of years ago when he could get out of solitary confinement and into a group living arrangement with more recreation opportunities... I'm very unhappy that it appears that things have changed back in the direction they were in before.

The Talking Dog: Can you comment on media coverage, in particular, of events at Guantanamo in calendar year 2013, and previously, and in particular, with respect to your own clients and representation?

Jan Kitchel: Lots of members of the media have given good coverage of Guantanamo (certainly, Carol Rosenberg of the Miami Herald comes to mind). The overall coverage has decreased over time... Americans are focused on the story of the moment, and attention has flagged over time.

The hunger strike has certainly increased attention to Guantanamo, and put attention and pressure on Obama to get more action going toward his stated goal of closing the institution, or at least taking steps to do so. Obama is largely driven by media attention-- he will talk about issues that he thinks are important to the public. He will certainly be more vocal if attention is focused on an issue-- although, of course, we can't know for sure if he'll actually do anything about it.

The Talking Dog: We have reached the point where more men have died at Guantanamo (and invariably under suspicious circumstances) than have been "convicted" under the controversial "military commissions," and a number of those "convicted" have actually been released, while the majority held are actually "cleared for release." President Obama has been handily reelected, notwithstanding the utter failure of his "close Guantanamo within one year" promise and evident decision to continue the logical arc of policies he inherited from the Bush/Cheney Administration. Further, Justice Stevens has retired, replaced with Obama's own former solicitor general, who might or might not continue recusing herself from any Guantanamo related litigation. And so, in light of all that, do you have any predictions for Guantanamo, "preventive detention" and related issues for, say, the remainder of Barack Obama's Presidency?

Jan Kitchel: There likely will be more terror incidents in the United States "homeland" during the remainder of Barack Obama's presidency. This likely will have a negative impact on civil rights. This washes over into a public antipathy for “going easy” on the perceived enemy. As to Guantanamo, it is really hard to predict. We can assume that some more inmates cleared for release will actually be released at least to their own countries (such as the Yemenis, to Yemen). At the moment, unfortunately, it does not look like there will be a lot of third party countries stepping up accepting transfers of men who are not their own citizens.

The Talking Dog: Can you tell me how your Guantanamo representation has effected you personally, be it professionally, emotionally, spiritually, or any other way you'd like to answer?

Jan Kitchel: I filed my petition for Younous in March of 2005, and if memory serves, I began work on it in January or February of 2005, so it has been a while. Professionally, the representation has had little to no impact, other than expending time and money to do it, as well as to give a few talks on the subject. From an educational standpoint, I have certainly elevated my own consciousness about politics and politicians, the struggle against terror, how our military fits into it and into our society, and I suppose it has made me more cynical than I already was.

The Talking Dog: Is there anything else that you believe I should have asked but didn't, or that the public needs to know concerning these issues?

Jan Kitchel: What I tell people is that in the United States, everyone is supposed to get a fair trial. If our government locks you up, no matter who you are, you get to have an attorney, due process, appropriate hearings and a fair trial. And if the government has no grounds to keep you locked up, you get released.

Frankly, I've been shocked at how the courts, especially the U.S. Court of Appeals for the D.C. Circuit, have handled the Guantanamo habeas cases: even when district court judges have ruled in favor of inmates, the D.C. Circuit has blocked any meaningful action toward their actual release from prison. This is dismaying, to say the least.

In the United States now, you don't get a fair trial, and if you win, you don't get justice. This is scary and discouraging.

The Talking Dog: I join all my readers in thanking Mr. Kitchel for that interesting interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutors Morris Davis and Darrel Vandeveld, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys Eric Lewis, Cori Crider, Michael Mone, Matt O'Hara, Carlos Warner, Matthew Melewski, Stewart "Buz" Eisenberg, Patricia Bronte, Kristine Huskey, Ellen Lubell, Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with former military interrogator Matthew Alexander, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo's First 100 Days, with Charles Gittings of the Project to Enforce the Geneva Conventions, and with Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, to be of interest.

May 3, 2013, Dep't of hand wringing

Benjamin Wittes at the Lawfare Blog gives us this piece noting the perplexing nature of the President's recent press conference comments on Guantanamo and indefinite detention. In this piece, Wittes notes his unusual meeting of minds with Glenn Greenwald on this matter.

In short, the President, whose own policies mesh well with Wittes's general view (which diverges from that of Greenwald.. and myself...) that there are circumstances where GTMO-style indefinite detention is appropriate policy, nonetheless asserts liberal sounding claptrap to the effect that somehow he [Obama] himself disagrees with these policies (and by implication its that mean old Congress that's tying his hands on this) when, in fact, he [Obama] is clearly the driver of these policies. In a matter of a few pen strokes, Barack Obama can largely empty Guantanamo and send most of its occupants to their home countries. If he actually believed the claptrap he's telling us, of course.

The reader is welcome to decide whether (Nobel Peace Prize winner) Obama's hypocrisy and duplicity (on this issue, among others) is worse than his war crimes (e.g., aiding and abetting and promoting torture and torturers, commencing and escalating unilateral war on nations posing no threat of any kind, targeted murder via drone and otherwise, etc....) but at some point, it would be nice if [my fellow?] alleged "progressives" would kindly acknowledge their own state of denial viz my college classmate Barry from Hawaii as to what he is: a rather effective proponent of policies we supposedly don't like when they are being advocated and implemented by Republicans.

Just saying. [Not that this petition to close GTMO will change the President's mind, but it might give you a moment of satisfaction, as it did for me (and you'll get a nice thank you e-mail from our friend Morris Davis.)]