It just depends . . .

Where is the rule of law here?  “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.”  This recent New York Times story has left more than a few people very unsettled. The headline poses the dilemma faced by the United States:  Under whose law do we wage war?  Will it be President Obama’s enforcement of the law, or the more widespread official legal system of U.S. Constitutional law – Common Law going back to the Magna Carta of 1215 AD?   It is a terribly slippery slope upon which the so-called “war on terrorism” has embarked.

Stated policy does not have the true force of law.  No matter how clearly the current executive branch system articulates the principles under which targeted drone killings occur, the President under our democratic system cannot act as prosecutor,  judge and jury.  That means either inside or outside of our national borders.  The rule of law applies everywhere.  The rules of war forbid killing of innocent civilians.  No matter how much I politically support this president, plan to vote for him in November, believe in his intellect and skill and see him as my leader, his authority is limited by the Constitution’s separation of powers.  I am not alone in this opinion.  Many civil libertarians find the current revelations about the drone war deeply troubling.

No man is above the law.   Congress represents the people and can speak for them.  The courts interpret the law.  Andrew Bacevich writes in Mother Jones about “America’s Rising Shadow Wars.”  Subtitled, “President Obama has expanded secret military operations worldwide—a policy that carries serious risks,” the author argues that,

From a president's point of view, one of the appealing things about special forces is that he can send them wherever he wants to do whatever he directs. There's no need to ask permission or to explain. Employing USSOCOM as your own private military means never having to say you're sorry . . .
Once in a while, members of Congress even cast votes to indicate approval or disapproval of some military action. With special ops, no such notification or consultation is necessary. The president and his minions have a free hand. Building on the precedents set by Obama, stupid and reckless presidents will enjoy this prerogative no less than shrewd and well-intentioned ones.

The policies of the Obama administration have evolved a great deal since Barack Obama was Illinois’ Senator Obama. Faced with the expectation that our Presidents will keep us safe as seemingly any cost, President Obama has moved a very long way from where he began in his public service.   “Drones: the Silent Killers” is from a Newsweek feature story at the Daily Beast.  It opens with excerpts from Daniel Klaidman’s new book, Kill or Capture: The War on Terror and the Soul of the Obama Presidency.  To quote:

• The president's troubled reaction to a botched strike during his first month in office
• His uneasy acceptance of "signature strikes" in Pakistan, or the targeting of groups of men who bear characteristics associated with terrorism, but whose identities aren’t known. Obama didn't like the idea of "kill 'em and sort it out later," says one source
• The formation of a “special troika on targeted killings” that includes Obama, vice chairman of the Joint Chief James “Hoss” Cartwright, and counterterrorism aide John Brennan
• Top State Dept. lawyer Harold Koh wondering, “How did I go from being a law professor to someone involved in killing?"
• The president’s having “no qualms” about the fatal strike on American-born cleric Anwar al-Awlaki
• Obama’s resistance—and ultimate relenting—to the use “signature strikes” on Yemen’s al Qaeda branch this spring

So when it comes to the rule of law over fighting suspected terrorists, it just depends  on to whom you listen.  We must listen to our President and his National Security Adviser, John Brennan, to Attorney General Eric Holder at the Justice Department, the Office of General Council, Tom Donilon, Chief of Staff/National Security Council, and others in the administration.  And we must also listen to defenders of liberty from the Fourth Estate, the press.

Press References: Rule of Law is my Twitter list showing tweets by a number of civil libertarians, investigative journalists and others who have influenced my thinking over the years.  They include Glenn Greenwald at Salon, the American Civil Liberties Union organization, Jeremy Scahill at The Nation Magazine, Jeff Stein at SpyTalk, Jason Leopold at TruthOut,  Marcy Wheeler at emptywheel.net, the Lawfare blog, and Democracy Now!

Reaction to the upcoming 9/11 trials, announced by AG Eric Holder

There was strong reaction to the announcement of the 9/11 trial to be held in a New York court. Liberals and civil libertarians were approving and Republican Right-Wingers were deeply disapproving.

What are we to call the widespread upset among Republicans? Today's post is a digest of opinion from writers whom I regularly follow as well as my own conclusions.

Fear Mongering -- Tom Andrews, writing late Friday night for The Huffington Post, said that, ". . . we all know that Right Wing critics will be out, en masse, using their favorite tactic of fear-mongering while relying on ignorance to manipulate the public." Read the whole thing: Khalid Shaikh Mohammad, others to finally face justice in NYC.

Surrender -- Other nations have trials of high level terrorists within their systems of normal justice. But since 9/11/01 we in the U.S. have not. I think Glenn Greenwald put his finger on the problem in his Saturday post. He minced no words, calling it "The Right's textbook 'surrender to the terrorists'." His intro line said, " 'We're too scared to have real trials in our country' is a level of cowardice unmatched in the world." And Greenwald closed with this straight up opinion:

. . . it's hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate -- it's too scary to have normal trials in our country of Terrorists -- is as pure a surrender to the Terrorists as it gets.

Cowardice -- At emptywheel Marcy Wheeler wrote a pungent little piece that asked, "Why is it that Republicans are such scardey-cats?" I love what Gregg Levine said in "Elephants on Parade" on Friday at Firedoglake, about the difference between Democratic and Republican reaction to the announcement of upcoming 9/11 trials. To quote Levine:

Cowards. Cowards. And again, cowards.

I can’t say that word enough because no one else seems to say it at all.

Contrast what a sampling of Republicans (and Republican wannabe) have to say about today’s decision . . .

Guilt -- Guilt and anxiety/fear are first cousins in the world of emotional motivation. Daily Kos' "thereisnospoon," thinks he has figured out why Republicans are having such a fear mongering fit. The author concluded:

There's a reason Republicans are pissing in their pants. . . they're afraid that their own policies of torture and indefinite detention will get the terrorists acquitted. So, like a stupid criminal, they're upping the ante by doubling down on their original criminal idiocy.

Un-American Demagoguery -- Leaders who make use of popular prejudices or false claims in order to gain power does not deserve followers. Representative Jim Moran used even stronger words than fearfulness in a post by Evan McMorris-Santoro at TPMDC. To quote from the story Friday:

Rep. Jim Moran (D-VA) has strong words for the Republicans opposing Attorney General Eric Holder's plan to bring five 9/11 suspects to New York City to face trial.

"They see this as an opportunity to demagogue," he said. "They will seize on any opportunity to do that, and that means they'll even take a stand that's un-American."

"It's un-American to hold anyone indefinitely without trial," Moran added. "It's against our principles as a nation."

Medieval Romanticism -- These are probably the kindest words I found in my little news survey. Professor Juan Cole at Informed Comment defined the Republican reaction to AG Eric Holder's decision to prosecute as "medieval romanticism." To quote:

Predictably, Republican critics vowed to fight the decision, since they much prefer to hold people forever without trial while torturing them, sort of the way some English kings did in North America before there was that pesky American constitution. . . . its fascination with arbitrary arrest and imprisonment and with torture more recalls the star chambers of yore than the deliberations at Philadelphia over 200 years ago.

Fear is a natural and normal reaction to accurately perceived danger. But the key is using one's whole brain to ascertain just what constitutes a real danger. The terrorists acts in 2001 were very dangerous. Over three thousand people lost their lives as a result. This is 2009, however, and it is important to make distinctions that today's realities warrant. Wiser people than knee-jerk reactionaries are now in charge, thank goodness. The United States government must continue to act out of calculation toward confidence-building, out of justice and healing, out of intelligence and courage, and out of genuine patriotism. It is time.

Related articles by Zemanta:

• 9/11 Suspects Could Be Moved to New York for Trial
• New York's 9/11 trial justice | Ken Gude
• "New York is not afraid of terrorists"
• Do Conservatives Trust Our Criminal Justice System?

Posted via email from Southwest Postings

Even though it is Friday the 13th things are looking up.

Saying no to superstition as the day wears on -- Those of us leaning Left feel a sense of relief that a return to justice may be on the way again, after eight years of Georgw W. Bush ignoring the rule of law. Attorney General Holder announced that several detainees will be brought to New York City to stand trial in federal court. And President Obama confirmed his belief that justice surely will be served there. Unfortunately, but predictably, Republican leaders quickly took up their old, tired-out tactics of fear mongering. I am beginning to believe that some of them are truly fearful, though I believed for a long time that it was a political tactic. What an awful way to live. What a pitiful way to lead.

Superstition and fear are first cousins. So it is wonderfully ironic that the worst fears of Republicans (almost the worst) came true on this Friday the 13th. Over the next few months they will be found out, branded as wrong-headed and seen for their lack of imagination and capacity to move on. What this administration is doing is returning to the way it was over most of our history, normal. And for all the Right Wing's accusations of radicalism from the President, it turns out he is just methodically normal.

For example -- Congress is to be treated as a more co-equal branch of government, though the President objected to their knee-jerk military spending on an unneeded airplane. In the end Congress gets to write the legislation and the President signs it, or not. Courts are where guilt and innocence are decided and where the rule of law is defined. The Executive branch executes the law of the land, adheres to treaty obligations. President Obama is on a trip to foreign lands, talking and listening, thank goodness. He does not seem to be bound by fears, or by anger, or by angst, or by jealousy, or by ignorance. He's just sort of a normal president running a normal administration. Eight years of the Bush administration made us forget what that is like.

Illustration is from Wordle.net.

Posted via email from Southwest Postings

Mickey Edwards on the Constitution and the Presidency, a reprise

[Original post date - 1/12/08] This post is republished because Edwards, one of the old fashioned trustworthy Conservatives, still might have something to say that bolsters the need for governing within the Constitution.

An outstanding program was presented by former U.S. Representative Mickey Edwards, (R-OK), January 7, 2008, at The Washington Center for Internships and Academic Seminars and broadcast on C-SPAN. Edwards' lecture focused on the U.S.Constitution and the current presidential races.

Mickey Edwards is a Constitutional scholar and journalist who wrote a yet to be released book, "Reclaiming Conservatism: How a Great American Political Movement Got Lost--And How It Can Find Its Way Back." Currently a Vice President at the Aspen Institute and on the faculty at Princeton, Edwards served as a Republican U.S. Representative from Oklahoma from 977-1993. He was on the Appropriations Committee and in the Republican leadership.

I took four pages of notes during the broadcast which I am presenting here in essay form, as I have in the past with congressional hearings. I paraphrase Edwards when I did not get exact quotes. I have also developed a number of links that relate to the material Edwards presented that lend standing to his points. And I have rearranged his points for flow and clarity. I have tried for as much accuracy as I can, because he presented important material in a brilliant manner. He begins with this:

“American Exceptionalism” is illustrated in our constitution. It really began 11 years after America declared its independence in 1776. No other country had tried this before. The Constitution is designed to prevent dictatorship. Henry V was a dictator.

Edwards quoted the journalist Dana Milbank on the idea of "head of government vs. head of state. Our president is the head of state, but not the head of government. Our president heads only one of the three co-equal branches of government. The Kenneth Branagh movie, Henry V had an episode illustrating why the founding fathers decided that the United States would not be a monarchy: In the film, a friend of the King’s stole something during a battle. This was against a royal decree and punishable by execution, which was carried out. In this system the King and the elites decide; the people have no say. All the decisions come through kingly decree.

This is the way our founding fathers did it: We said the people would be in charge of their own destiny through their representatives. In the American system the people decide whether to go to war; they make spending and taxing decisions through their elected representatives. The Bush presidency is absolutely unprecedented. He declares he is “the decider, the chooser.” With Presidential signing statements Bush says, “I have the right to determine whether the law is binding on me. Regarding torture, for example, I will determine whether the law is binding on me or not.”

Bush made 1100 signing statements, more than all the former presidents combined. Edwards testified in a House Judiciary Committee hearing on the presidential use of signing statements to circumvent the law. Edwards served on an American Bar Association Task Force (that included a lot of Republicans) studying this question. It found that such signing statements violate the constitution: Article One, Section Seven says the president can do one of two things with a law passed by Congress. He can sign it into law or not sign it (a veto). It takes two-thirds of both houses of Congress to overturn a veto. The President does not have a constitutional option to sign something into law and then ignore it.

Unitary Executive Theory means that Bush does not feel bound to follow the law. The president claims that officials work for the president, and are not bound to obey Congress. The General Accounting Office took a look at what happened to the 2006 Appropriations bill. It found that fully 1/3 of Congressional directives had been ignored by executive agencies. Bush said I can decide. He decided they did not need to go to court to conduct surveillances, and that some people were not entitled to habeas corpus protections.

Regarding presidential executive orders – Edwards feels that, "These are perfectly fine when confined to the executive branch. Things like secrecy and privacy are justified as long as they do not intrude into the judicial or legislative branches, or on the people.

Regarding executive privilege – It is OK. But there are limits to it. For example, Harriet Myers was subpoenaed to come before a congressional hearing and testify about certain communications within the Justice Department. She ignored the subpoena, citing executive privilege. However, the President was never involved in the communication under question. The claim was made that executive privilege extends to everyone in the executive branch – all who are working under the president - not just to communications between the president and his subordinates.

The rule of law and the Judicial Branch – What happens when the President will not obey the law and Congress tries to go to court to make the President follow the law? What is our recourse? The problem is that the courts make access so difficult. The issue is that the Supreme Court and the other Federal courts have Constitutional rules of “standing,” entitlement to bring suit in that court to settle “cases and controversies.” When Edwards was in Congress he and a number of other legislators wanted to sue President Carter in “Edwards v. Carter.” They lost because the courts said they did not have standing. They had not been personally injured. We do not know whether we have been wire-tapped, for instance.
And the courts have twice not upheld the line-item veto for a president.

The President has no power not to implement any of the laws. He has no power to violate any law that he has signed. In the Jackson Supreme Court decision, it said that when Congress speaks on an issue, presidential power is then at its lowest ebb. The three branches are equal.

So, if going to court is not practical, what can a Congress, that does not have “standing,” do to force a President to follow the law? Edwards’ suggestion is that Congress use the power of the purse.It would go something like this: Congress could say, “We will cut $25 million out of the office of the Secretary of the Interior. Or we will not fund the office budgets of three such departments. And we will begin to issue a number of subpoenas, and hold a number of hearings."

Congress has enormous powers that they do not use effectively. Edwards declared that “this Congress valued loyalty more than the Constitution. The powers of Congress are an obligation imposed on the members of Congress to fulfill. It is their responsibility to exercise it under the Constitution."

How did we get where we are today? Edwards said, “We have lost track of what our system is and why it is different than what went before.” We have forgotten that the President is not the head of government. The Constitution was designed to keep the power in the hands of the people, through their elected representatives. For example look at Congressional earmarks. Congress is to decide on spending, as opposed to letting the Executive branch decide, OMB, for example.

We are too ignorant of our system of government. Students have not been taught, and the press does not point out such things.

What about Iraq? The war was justified under false claims. It was called a” preemptive” war. But that is when we go to war because someone is presenting an active threat to the U.S. It was actually a”preventive” war. That is when we go to war against someone who may become a threat. Edwards said that as he has traveled in the Middle East, he learned that there is almost universal anger at the U.S. for the invasion of Iraq. The leaders were opposed to us going in; but now these same leaders are against our arbitrarily leaving prematurely.

The 2008 presidential election -- Regarding the current criticism of Barack Obama’s “vision over specifics:” Edwards says, “Hooray for him.”

Charlie Savage of the Boston Globe was the one who discovered how widespread the Bush use of presidential signing statements is [and won the Pulitzer for it]. In his recent article he asked all the current presidential candidates what they would do regarding signing statements.

People need to ask the current candidates this question: “Where do you understand the limits of your powers to be?”

Some will say that the current threats mean that “We need a strong leader.” Professor Richard Neustadt says that such strength is embodied in a power to persuade, the power to stir the people.

Today is actually not an unprecedented threat for the U.S. In 1776 if Britain and France had combined forces against America we could have easily been defeated. In the face of even that possibility, the founding fathers decided we would not have a monarch. The other point is that in a time of unprecedented threat, isn’t there a risk in having only one person be the decider? We need more heads than just one. What if that one is of sub-par intelligence?

The U.S. needs to defend itself, of course. And we may even need to curtail liberties for a short time. But that is a decision to be made by the representatives of the people. We said yes back in the ‘70’s, but that such surveillance can only be done if the executive branch goes before a court to get the authority.

When asked who among the current candidates would be the strongest, Edwards first said, “none of the above.” He also said, however, that we will have plenty of opportunity to evaluate people over time. He then added that he would take a lot of heat for saying it, but would have to chose Hillary Clinton. Edwards likened some candidates to Henry V, including Rudy Giuliani “and perhaps McCain.”

He said that “reaching across the political aisle would be essential,” naming Obama, McCain or Huckabee as the strongest in that area. Edwards continued saying that the next president just cannot insist on going it alone. He or she will have to build support.The President can have a big influence of members of Congress. The President should meet regularly with the leadership of Congress before coming out with any program. Edwards said the Bush tried only to reach out to his Republican base, and that he actually does not know who that is. He also pointed out that “he has no problem trying to get Middle East leaders such as Olmert and Abbas to shake hands, but would not think of doing the same with Nancy Pelosi and John Boehner.”

Mickey Edwards found out to reach across the political aisle to me, a Progressive Democrat. Don't we wish there were more like him?

Technorati tags: news news and politics politics bush 2008 election presidential candidates conservative mickey edwards

Blogs: My general purpose/southwest focus blog is at Southwest Progressive. My creative website is at Making Good Mondays. And Carol Gee - Online Universe is the all-in-one home page for all my websites. See also Behind the Links.

Taking advantage of an opening

President Obama continues to have opportunities to come down on the correct side of the big Constitutional questions.

Three federal judges appointed by former President George W. Bush opposed President Obama on his policies regarding detainees suspected of terrorism. Virtually unchanged from the Bush administration, claims of broad executive authority were dismissed by the judges, who said that "the executive branch was overstepping its authority and claiming more powers than the law allowed," to quote a recent Politico.com article. The decisions 1) ruled that some prisoners captured outside of Afghanistan and held at Bagram Air Base in Afghanistan were entitled to challenge their detention; 2) refused to dismiss the Jose Padilla lawsuit against John Yoo; and 3) dismissed claims that Syrian detainee al-Janko could be held at Guantanamo, even when the government knew he had been tortured by al-Qaeda. The administration is still fighting the Bagram and Padilla rulings.

Still in contention in court is the ACLU lawsuit to get the CIA Inspector General's report to be made public. It now looks as if it will not be released until the deadline of August 31, according to emptywheel, who has mixed feelings about such a delay.

Legally, one of the President's biggest dilemmas, he is now admitting, is whether to go ahead with imprisoning the most dangerous terror suspects indefinitely without trial. A mid-June poll showed that an overwhelming majority opposes preventive detention without charges. President Obama told the AP's Jennifer Loven in an interview last Thursday that he is uneasy about his own indefinite detention proposal. To quote:

. . . Obama said he has strong reservations about detaining people without bringing them to trial — a legal quagmire that dogged former President George W. Bush.

"It gives me huge pause," Obama said . . . "And that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this that I don't feel comfortable with the proposals that surface on how to deal with this issue."

. . ."How we deal with those situations is going to be one of the biggest challenges of my administration," Obama said.

If he goes ahead with indefinite detentions, Obama said he would ask Congress to approve it by law — and not do it himself through an executive order, as some administration officials have privately suggested.

It is still not too late for President Obama and the Department of Justice to get on the right side in these questions. June 26 was the anniversary of the Convention Against Torture and it is time for the administration to do everything it can to keep what happened in the Bush administration from ever happening again. And it is essential that those who broke the law be held accountable, so that we can prevent torture from happening again. The ACLU has been bringing unmet FOIA requests to court since 2003. Emptywheel at Firedoglake posted a powerfully ironic piece on that day titled "Ending Torture: Wrong Agency Mr. President." I commend it to your reading. Marcy Wheeler concludes, "George Bush's promises to prosecute all acts of torture were horribly empty words. But Obama's solution to look outward, to the Department of State rather than the Department of Justice, is even emptier."

[Post date - July 6, 2009]

See also Behind the Links, for further info on this subject.

Blogs: My general purpose/southwest focus blog is at Southwest Progressive. My creative website is at Making Good Mondays. And Carol Gee - Online Universe is the all-in-one home page for all my websites.

Technorati tags: news news and politics torture obama guantanamo

Lots happening!

This week has been marked by momentous news events. At least the events seemed momentous to me. So I took a little vacation from posting to watch television to my heart's content and just absorb, without reflecting in a blog post here. Naturally, my readership fell off.

No posting at South by Southwest does not indicate that there has been a general slack off like mine. There's plenty of good reflecting in the blogosphere about what has been happening. My TwitterFox box has been full of tweets. It was scanning them and watching television that convinced me that these are big times characterized by change and risk.

Risk is the name of the game with the NASA Hubble mission, on its own with no ISS nearby. The STS 125 crew (MS Megan McArthur) has grappled the HST, secured it in the Atlantis payload bay, and taken note of a bit of space junk in their neighborhood. According to Astronautics, "STS-125 astronauts John Grunsfeld and Drew Feustel are set to make the first of five Hubble servicing spacewalks Thursday." And I will be glued to NASA TV. In fact, I plan to watch a great deal of the mission coverage for the next few days.

It was very risky politically for President Obama to make a 180 degree turn regarding the detainee photos as ordered in the ACLU lawsuit. Because his commanders on the ground convinced him to reverse course, he will ask his lawyers to argue that it would risk the safety of our fighting men and women in the south Asia theater. In this case I tend to agree and hope my liberal friends will understand why I am not having a fit about his pragmatic decision, that John Dickerson likens to parallel parking in a tight spot.

And there has been a change in what the Senate is doing regarding holding hearings about torture. I was glued to my computer screen (C-SPAN 3) for this one. Senator Sheldon Whitehouse (D-RI) chaired a Judiciary subcommittee hearing at which several witnesses testified regarding the Bush administration's torture program. It was an amazing and heartwarming thing to watch my favorite senator wade into this investigation swamp, with Ranking Member Lindsey Graham (R-SC) at his side. Senator Durbin (D-IL) was the only other senator to attend (briefly). MSNBC evening shows featured Senator Whitehouse on Countdown and Philip Zelikow on the Maddow show. Again I was glued to TV watching those appearances. Senator Whitehouse expects Judiciary Committee Chairman, Patrick Leahy (D-VT) hold the next major hearing, after the DOJ OPR report on the professional conduct of the Bush OLC lawyers. Bravo!

There is also a good deal of movement towards health care and credit card reform, which I have been following on television. There was a protest march led by the California Nurses Association in support of the inclusion in the discussion of the "single payer" option. Senator Baucus' Senate Appropriations Committee is beginning to try to find consensus of the form it will take, and "single payer" is not on his table. I am not even sure that the "public plan" option is on it. The direction right now is to find ways to cut the costs of health care. The Social Security and Medicare programs are at quicker risk of insolvency risk of insolvency than was previously believed.And the Senate is likely to pass a Credit Card reform bill that will bar a lot of the outrageous costs banks and credit card companies are charging their customers.


[Post date May 14, 2009]

See also Behind the Links, for further info on this subject.

Carol Gee - Online Universe is the all-in-one home page for all my websites.

Technorati tags: news news+and+politics politics congress

CIA-OLC-Gitmo Primer

It took a large number of people and organizations to get the torture program up and running at Guantanamo Bay and elsewhere. Spy Talk's Jeff Stein writes that repetetive interrogations revealed the CIA's lack of spies, according to a number of agency veterans. One of the most bizarre aspects of the program was the participation of psychologists. ProPublica has investigated this part of the story and written an important article on the subject: "A Secret E-mail Argument Among Psychologists About Torture," by Sheri Fink, (5/8/09). To quote:

As part of our report* we posted a listserv of internal emails between staff of the American Psychological Association and members of its "Psychological Ethics and National Security" task force. (Here’s the entire listserv.) That listserv offers a rare look into a process that led to the adoption of an influential and controversial policy for the world's largest professional organization of psychologists, which represents the profession of psychology in the United States. It also provides a window into a heated discussion among medical professionals grappling with their ethical obligations and their possible complicity in torture.

Liberals want accountability for those who wrote the "torture memos" regarding harsh interrogation techniques. President Obama is opposed to a "truth commission," as suggested by Senator Leahy; an independent inquiry, as suggested by House Speaker Pelosi and opposed by the Senate; or even an independent prosecutor, unless prosecution was recommended by the DOJ. Some liberals have suggested the impeachment of federal judge Jay Bybee, one of the memo authors. And, unlike many U.S. news sources, Al Jazeera headlined (5/6/09) that the "US [is] 'likely to probe Bush lawyers," citing Scott Horton, a professor of military law at Columbia University in New York. To quote Horton:

. . . the results of the inquiry would very likely form the basis "for a criminal investigation being commenced".

"There is likely to be a criminal investigation that will look at the entire process of introducing torture in Guantanamo, Bagram, Abu Ghraib and other places as a result of decisions that we now know were ultimately taken in the White House itself," he said.

"These lawyers played a key role in that entire process."

Horton added that the report would "heighten the pressure on the attorney-general [Eric Holder] for the appointment of a special prosecutor" to investigate the lawyers' actions.

"I think the attorney-general is going to find it impossible to avoid the investigation phase," he said.

President Obama banned torture and he and the Justice Department have said there will be no prosecution of those in the CIA who practiced the enhanced interrogation techniques on those detained by the U.S. Likewise the administration opposed prosecution of the authors of the torture memos. According to The Washington Post, there was intense debate in Obama's inner circle over the decision to release the memos. The President certainly walks a thin line in the entire interrogation question, analysts say. A great many American people believe that President Obama was absolutely right to release the torture memos, though there was, of course, debate about it.

The Office of Professional Responsibility at the Justice Department has drafted a long-awaited report on the professional conduct of the torture memo lawyers. It looks as if it will only recommend professional sanctions against two of the three lawyers, Yahoo! News (5/5/09) reported. It should be pointed out that the OPR does not have the authority to press charges.

The CIA reportedly declined to closely evaluate harsh interrogations during the Bush administration, according to an excellent LA Times (4/26/09) story. There has been no study to see whether the methods worked or not. There is now a White House task force to examine the effectiveness of various interrogation approaches. The Senate Intelligence Committee has launched a similar review, one that has never been done before. From the horse's mouth comes a very believable piece by Ali Soufan on the New York Times Op-ed page of April 23, 2009: "My Tortured Decision." To summarize it --

A former F.B.I. agent who questioned Abu Zubaydah in 2002 says the terrorist operative provided important intelligence under traditional interrogation methods. The CIA had inflated the importance of what Zubayda had to say.

One of the first things President Obama did after taking office was announce that Guantanamo Bay, Cuba's detention facility would be closed. The project to close Guantanamo is not an easy one. There are costs involved, both monetary and political. Congress is getting increasingly worried about the possibility of detainees in their communities, and may impede the closure plans. Politico explains:

[Senate Minority leader Mitch] McConnell’s comments were most telling. . . just as many Democrats see Guantanamo as a legacy of the Bush years, the Kentucky Republican framed the fight as a test now of whether the Obama administration will protect Americans, fearful of the detainees being moved into corrections facilities in their states.

Former Vice President Cheney has led the Republican charge against the Obama administration's efforts to put things right. In an ironic twist ProPublica revealed that the government could destroy records in hundreds of Guantanamo cases. There is even talk of reviving the Guantanamo military court process. And Time Magazine examined the Army Field Manual for an article headlined, "Beyond Waterboarding: What Interrogators can still do." CIA Directer Leon Panetta has ruled that contractors are not allowed to interrogate any more, emptywheel reported.

"Libertarians" for a Torture State -- by Ed Kilgore at the Democratic Strategist (4/28/09), examined the Republicans' inconsistencies of position (between right-wingers and Libertarians) regarding the questions associated with the rule of law, torture and closing Guantanamo. J.P Green, in the same newsletter, explores "Obama's Measured Strategy on Torture." His closing argument could be persuasive:

America is honor-bound to address accountability for torture --- but later better than sooner. Maybe the best thing, strategy-wise, would be for Holder to initiate a thorough investigation, but save the investigation revelations and recommendations until after we get the economy on solid footing and health care reform safely enacted.

References:

1. *Report:"Tortured Profession: Psychologists Warned of Abusive Interrogations, Then Helped Craft Them," by ProPublica, May, 5, 2009


2. "Interrogations Timeline," from The Washington Post (4/23/09)


3. "Torture Memos vs. Red Cross Report: Prisoners' Recollections differ from Guidelines" -- a side by side comparison chart, from ProPublica (4/24/09)


4. The significance of Obama's decision to release the torture memos, is an important and thoughtful piece by Glenn Greenwald at Salon.com (4/23/09).


5. "America's quick recovery from its torture program suggests it wasn't a torture program in the first place," by Slate Magazine's great writer Dahlia Lithwick (4/17/09). To quote:
   
   

   Laced like cynical poison through the four newly released Justice Department torture memos is the logic of quick healing: Eleven days of sleep deprivation is not illegal torture so long as the prisoner gets to sleep it off later. Writes then-Assistant Attorney General Jay Bybee: "The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep." In that same memo we learn that water-boarding is also not illegal torture because the simulated drowning lasts only 20 to 40 seconds, and thus, "the waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering." By the same token, "walling" (i.e., slamming someone into a wall) isn't torture either because "the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash."



6. A Tale of Torture Grows More Timely by the Day. This is from the New York Times THEATER section By PATRICK HEALY, May 02, 2009. To summarize: In a relatively rare confluence of theater and politics, the critically lauded production of "Torture" opened nine days before the Justice Department made public four memos that described brutal interrogation techniques.
   

[Post date May 10, 2009]

See also Behind the Links, for further info on this subject.

Carol Gee - Online Universe is the all-in-one home page for all my websites.

Technorati tags: news news and politics politics obama administration torture OLC Gitmo CIA

Rule of law issues explored --

Supreme Court Justice David Souter plans to retire after his successor is chosen and confirmed. President Obama has committed to have the new justice in place when the Supreme Court reconvenes. The nomination process will consume an enormous amount of time, media attention and legislative energy between now and October.

[Image: Wordle.net]

Early signs of back to Bush -- By the time the new court convenes, the Obama Justice Department should have its act together. Many of us have been very concerned as we get reports that the new government's lawyers have not stepped aside from many of the questionable Bush Justice Department court arguments.

Detainees at Gitmo -- Davis Cynamon, an attorney for 4 Gitmo detainees has been fighting for their due process rights, accuses the DoJ of "abandonment of the rule of law," according to TPMMuckraker's post, "Not Just State Secrets: Obama Continuing Bush's Stonewalling On Gitmo Cases, Lawyer Claims," (4/10/09). To quote:

"The Department of Justice has been doing everything in its power to delay and obstruct these cases," said Cynamon, whose clients were picked up in the Afghanistan-Pakistan region in the period after the 2001 U.S invasion of Afghanistan. "They're not doing anything to move the case along, and doing everything to avoid it."

Asked whether he had observed a shift of any kind in the government's approach since the Obama administration came into office, Cynamon flatly replied: "None whatsoever."

This kind of leftover Bush court stance has been difficult for many of us to understand, given the high quality of President Obama's nominees for his key legal positions.

Nominations blocked by Senate -- The nominations of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel and Harold Hongju Koh to serve as Legal Advisor to the State Department are being held up by conservatives in the Senate, says the Firedoglake post, "Legal wrangling: Why the fuss about legal nominees?" (4/9/09). To quote (emphasis mine):

The nominees themselves are so well-qualified, so clearly within the progressive political mainstream, and the attacks against them so frenzied, one is left scratching one’s head and wondering: what on earth is going on here?

. . . [Senator John] Cornyn castigates Johnsen for her “prolific and often strident criticism of the legal underpinnings of the previous administration's counterterror policies.” . . . Johnsen’s criticisms of the legal underpinnings of Bush’s counterrorism policies have been right on the mark. The Bush administration itself was forced to renounce some of the OLC memos Johnsen criticized because they were so profoundly flawed. And let’s not forget that the Supreme Court has had four opportunities to review Bush counterterrorism policies and has struck the policies down each time. That’s because Bush had a tendency to ignore the law. John Cornyn doesn’t care; Dawn Johnsen does.

. . . The bottom line is that the stakes here are thus much higher than whether Obama gets his first choice to fill these slots. And they go beyond how the rule of law will apply at the Justice and State Departments.

Most observers agree: the attacks on Johnsen and Koh are spring training for the coming attacks against Supreme Court and other judicial nominees (Koh himself may be one) who display a similar commitment to the rule of law. That’s why it’s so important to expose what’s behind the current attacks, and defeat them.

We can predict that Republican right-wingers and the like will stage protests in all forms against whomever the President nominates to the Supreme Court. They will get media attention, they will pressure senators, and they will be extremely visible. Those of us on the other side are demanding Constitutional stances from the new administration. We must also support for our opponents' right to speak freely, even if outrageously.

Citizens must act to make our wishes known to our President and to our elected representatives. These fundamentals are beautifully explained in Firedoglake's post, "Peaceable Assembly; Petitioning to Redress Grievances (4/8/09). To quote:

The first ten amendments to the Constitution are called the Bill of Rights and they became law in 1791. Among the first of these are the rights peacefully to assemble, to exercise free speech, and to petition the government to redress grievances. They are first because they are fundamental to the preservation of representative government.

. . . First Amendment rights have a kind of "Use 'em or Lose 'em" quality. We exercise them to protect us against their silent or notorious abridgment. We assert them to remind public officials of their public promises. Most of all, we use them to make our views known and to encourage others to adopt them, Congress and the President included. We do not use them in order to give an unruly government an excuse to abridge them further.

The rule of law was explored in today's post. President Obama will no doubt appoint a person to the highest court in the land of whom we can be proud. And it will inevitable spark a big fight. Between now and then it is my expectation that Attorney General Holder and his stable of lawyers will have gotten a handle on how they can roll back the most dangerous and destructive of the Bush legal positions. If they do not, the Supreme Court will be forced to rule against them over and over until they finally "get it."

[Post date - May 3, 2009]

See also Behind the Links. Carol Gee - Online Universe is the all-in-one home page for all my websites.

Technorati tags: news news and politics politics supreme court rule of law constitution

Warrantless wiretapping still out of control, defensive in court

The National Security Agency has the role of its own oversight. And it recently reported that warrantless wiretapping is much more pervasive than previously claimed and that our intelligence gathering apparatus is not following the law passed by Congress last summer to regulate the intelligence community. The story, "NSA Broke New Eavesdropping Law," is from Wired - Threat Level (4/16/09).

The Obama administration is claiming broad state secrets privilege in the various court cases involving warrantless wiretapping filed since the passage of the law. "Justice [claims]: We invoked State Secrets only 'after careful consideration'," is the story from TPM Muckraker on (4/10/09). They are refusing to disclose "sensitive [sources and methods] information that would cause exceptional harm to national security." To quote further from the government's statement,

While the assertion of states secrets privilege is necessary to protect national security, the intelligence community's surveillance activities are designed and executed to comply fully with the laws protecting the privacy and civil liberties of Americans. There is a robust oversight system to ensure this compliance.

White House Counsel Greg Craig formerly served in the Clinton administration. Blogger emptywheel blames White House Counsel Greg Craig for much of the controversial position the administration has taken on the state secrets issue, and backgrounds how this latest claim arose in the al-Haramain lawsuit in the 9th Circuit over the Bush warrantless wiretapping program. "New and worse secrecy and immunity claims came the Obama Department of Justice," in the EEF court case against the government, Glenn Greenwald's April 6 post reports. Greenwald points out that one of the claims, that of "sovereign immunity" is "brand new " and has never before been asserted.

Congress wants to step in -- Greg Sargent, at The Plum Line, headlined in Memeorandum: "White House Mum On Legislation That Would Nix Bush "State Secrets Privilege." Several bloggers credit Sargent's work and picked it up and ran with it also: "The White House won't say whether it'll back an effort to roll back the state secrets privilege," says Zachary Roth at TPM Muckraker. Nor is Vice President Biden talking about the recent reintroduction of a "state secrets" bill he sponsored last year. But Senator Russ Feingold had no such hesitation, making a formal statement that he is "troubled" by the DOJ position.

White House has "no comment." Daily Kos' "mcjoan" echoes concern at the "no comment" stance taken on the state secrets legislation, that would drastically limit the use of the state secrets privilege. Congressional Quarterly-Politics' David Nather reminded that "state secret claims [will] test Democrats' commitment to oversight."Glenn Greenwald linked to TPM's very good work on this story of how the Obama administration fell into lock step with the Bush administration on court case responses regarding warrantless wiretapping.

This issue is not going away. The courts will continue to struggle with the problems unnecessarily presented by the government's lawyers. And Congress will, hopefully, continue to assert its oversight responsibility via hearings and legislation. And citizens will continue to protest the erosion of our Fourth amendment rights. Stonewalling is only a stopgap.

[4/19/09]

My all-in-one Home Page of websites where I post regularly: Carol Gee - Online Universe

Technorati tags: news news and politics politics national security state secrets warrantless wiretapping DOJ

Obama administration and detention -

Image by marc.benton via Flickr

"Obama and habeas corpus -- then and now," by Glenn Greenwald at Salon.com (4/11/09). The Supreme Court ruled in the Boumediene case that Guantanamo detainees have the right to a hearing to contest the accusations against them. After that the Bush administration took the detainees to the prison in Bagram, Afghanistan, where they did not have those same rights. The Obama administration also argued that military detainees (not necessarily captured in Afghanistan) have no right to challenge their imprisonment at Bagram. However, District Court Judge John Bates, a Bush appointee, ruled last month that "Boumediene applies every bit as much to Bagram as it does to Guantanamo." The Obama administration is appealing the decision. Even though candidate Obama said this after the original Boumediene decision came down:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

Senator Obama's statement on the Senate floor (9/6/06), was also quoted by Greenwald. Senator Obama spoke for "an amendment to the Military Commission Act that would have restored habeas corpus rights to Guantanamo detainees. Greenwald laments in passionate terms, the President's apparent about face.

On April 2, 2009 a federal judge ruled that 3 prisoners being held at the Bagram AFB detention facility in Afghanistan can challenge their detentions in the U.S. courts. They were picked up outside of the country, are not Afghan citizens and have been held there for over 6 years. This is according to an ACLU Blog post. a related post discussed the increasing calls to "Move Gitmo Cases to U.S. Courts."

Other detainee cases are even more strange. For instance, What About the Uighurs? To quote from another ACLU Blog of Rights post in early April:

Remember the Uighurs? They are a group of 17 Chinese Muslims from Northwestern China that have been have been detained at Guantánamo for over seven years without charge. Last fall, the Bush administration conceded that the men are not enemy combatants, but since that time, the group has continued to remain in legal limbo.

Yesterday, lawyers representing the Uighurs asked the U.S. Supreme Court to order their release into the United States.

"Supreme Court vacates lower court decision in Al-Marri case," is the headline from the ACLU Blog of Rights (3/6/09). The court dismissed the case as moot because the Obama administration has decided to prosecute Al-Marri in federal court for providing material support to terrorism. Glenn Greenwald's (3/7/09) post explained that the effect was "preventing a judicial ruling on the power to imprison without charges." The critical question thus remains unresolved by the Supreme Court. Greenwald reminded that The Bush administration had used the same tactic (of finally charging a detainee with a crime) in the Jose Padilla case. Read the rest of this post to understand all the implications of these decisions.

There is some reason to believe, emptywheel states, that high value prisoners were often moved out of the facility at Guantanamo to keep them away from the purveu of the ICRC (see their report referenced below). And there is some reason to hope that a series of unnerving revelations and court decisions against the stances of the Obama Justice Department, after walking in the footsteps of the Bush administration's positions, will force the current administration to return to the rule of law. Keep hope alive.

For reference --

• "Red Cross Torture Report: What It Means," from The New York Review of Books (4/30/09).


• The Treatment of Detainees in U.S. Custody by Steven Aftergood, details and links to Senate hearings held June 17 and September 25, 2008.
• "Podcast: The 'Definitive List' of Guantanamo detainees" from the ACLU Blog of Rights (4/8/09). To quote:
  
  

  But for all the information that’s already out there, London-based journalist Andy Worthington has recently made available "Guantanamo: The Definitive Prisoners List." This online resource supplements Worthington’s 2007 book, The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, which chronicles, through information gleaned from the Pentagon’s own records released through the Freedom of Information Act, individual histories of each detainee who was imprisoned at Gitmo since it opened in January, 2002.

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Congress should investigate -- if not, who will?

[4/14/09]

Image via Wikipedia

Congress is on spring recess until April 20. They still have a few more days to hear from constituents on the subject of Bush administration accountability for misdeeds. Today's post digests a few items on the subject that remain timely.

OLC - leaderless -- Dawn Johnsen's nomination to head the Obama administration's Office of Legal Counsel is still on hold, emptywheel includes Johnsen's OLC philosophy in this interesting post, as well as key senators' phone numbers. In another revealing post, this fine blogger discusses President Obama's signing statement that apparently weakens whistle-blower protections for federal employees who give information to Congress.

Sen. Patrick Leahy recently proposed a truth and reconciliation commission to investigate abuses during the Bush-Cheney Administration - so they never happen again. These abuses include the use of torture, extraordinary rendition, and executive override of laws. A website, BushTruthCommission.com has a way to sign his petition. So far it has accumulated 92,770 signatures. Following on the heels of Senator Leahy's March hearing and proposal, Firedoglake's Christy Hardin Smith explored the question of immunity as it was laid out by Senator Sheldon Whitehouse here: "Open questions: truth commissions, accountability and immunity." Smith concludes,

What should be done? Any number of things, but that quote from Whitehouse made me wonder if he knows something about prosecutors already looking at these issues and, if so, who and what issues? It's likely he was just talking generally about folks at DOJ...but I'd love more details if there are any, wouldn't you?

Senator Sheldon Whitehouse was brilliant during the Judiciary Committee hearing. Blogger emptywheel featured the Senator's telling exchange with "Republican shill David Rivkin" regarding "the gallery of horribles that might go wrong," using Whitehouse's term for Rivkin's straw man arguments. TPM Muckraker, Zachary Roth summarized Rivkin's testimony as "GOP witness: by historical standards, Bushies' war on terror conduct was 'exemplary'." Roth also reports that Republican Senators Specter and John Cornyn were predictably opposed to a "truth commission."

Glenn Greenwald, my favorite investigative journalist, who writes at Salon.com convincingly argues that "a war-crimes fact-finding commission could uniquely enable prosecutions." Glenn reported, on the other hand that Speaker Pelosi criticized the Truth Commission as inadequate, advocating criminal prosecutions instead.

See also Behind the Links, for further info on this subject.

Carol Gee - Online Universe is the all-in-one home page for all my websites.

Technorati tags: news news and politics politics congress truth commission

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Tales of torture

[4/12/09]

Image via Wikipedia -- Safe house in Faisalabad where Abu Zabayda was captured.

Reminders of not so long ago

Recommended Reading -- "The Red Cross Torture Report: What it means," by Mark Danner in The New York Review of Books, (pub. 4/30/09). The text of the ICRC Report is linked in Danner's piece, as well as Dick Cheney's statement on the value of torture made on 2/4/09. This is the part of the ICRC report that refers to Abu Zubayda:

Mr. Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours (see Section 1.3.5, Confinement in boxes). After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. He thought that the plywood was in order to absorb some of the impact so as to avoid the risk of physical injury.

"They should have listened to Noor al-Deen," is by emptywheel on Abu Zubaydah (3/29/09). Abu Zabaydah and Noor al-Deen were picked up in a Pakistani safe house in 2002. Thinking, mistakenly, that they had members of alQaeda, they were questioned. Al-Deen told the truth, which was eventually corroborated and he was released to Syria. Zubayda was eventually tortured so much that he is now permanently dysfunctional. To quote the conclusion,

So you've got a panicked teenager spilling his guts, insisting that Abu Zubaydah is just a functionary. And at the same time, Abu Zubaydah was saying he was just a functionary (and providing what useful intelligence he had to offer). And the US response to that was ... to make Abu Zubaydah their torture experiment--their test case for what torture techniques did and did not "work."

Yet more reason they destroyed the torture tapes showing Abu Zubaydah's interrogation.

Office of Legal Counsel - Memos upon which torture rested

There are no excuses for ongoing concealment of torture memos," wrote Glenn Greenwald at Salon.com on 4/6/09. The ACLU has been battling in court for two years to get the Steven Bradbury OLC memos released. Greenwald's very interesting post explores why the release has been blocked from a number of different angles. To quote,

They are, in essence, the Rosetta Stone for documenting the war crimes committed not by low-level CIA agents but by the highest-level Bush DOJ officials.

. . . Those are the torture memos that are now at the heart of a growing controversy, as the Obama administration has sought multiple delays . . . the anti-disclosure crusade inside the Obama administration is being led by John Brennan. . . while it is true that Brennan has been aggressively advocating against disclosure, it is the threatened obstructionism [of two Obama appointees, Dawn Johnsen and Harold Koh] from the Senate GOP that is the "principal" cause of concern inside the White House.

"Bradbury Memos: Not Quite Yet," from The ACLU Blog of Rights (4/2/09). The ACLU in its lawsuit agreed to a two week extension of the release deadline so the government can finish its review of three Bradbury memos reportedly providing legal justification for CIA enhanced interrogation methods amounting to torture. The government may also review a Jay Bybee memo. The memos are "critical to understanding the foundations of President Bush's torture program," ACLU said.

Bad Timing -- "They picked a bad week to stop sniffing glue," was written by emptywheel (3/7/09). With all the other OLC memos just coming out, the Obama administration had a hard time with its presentation regarding dismissal in the Jose Padilla lawsuit against John Yoo. The judge was not impressed.

"Memos reveal scope of the power Bush sought," is taken from the New York Times (3/3/09). To quote the intro:

The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants.

That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency.

. . . The memorandum issued by Mr. Bradbury this January appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.

To be continued -- The International Red Cross report on torture and the New York Times article on the OLC memos form the bookends of the story that must be told, over and over, so that it is not forgotten or swept under the rug.

**********

Related links at Behind the Links.

My all-in-one Home Page of websites where I post regularly: Carol Gee - Online Universe

Technorati tags: news news and politics national security department of justice

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