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In Our Names

By Big Tent Democrat, Section Civil Liberties
Posted on Wed Jan 21, 2009 at 11:31:38 AM EST
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Read Glenn Greenwald discussing the affidavit of former Gitmo military commissions prosecutor Darrell J Vandeveld (PDF) in support of the habeas petition of Mohamad Jawad (here is the habeas brief prepared by the ACLU) (PDF), held in Gitmo for more than 6 years, since he was transported from Afghanistan when a teenager. A stain on our Nation.

In our names. President Obama ordered military prosecutors to seek a 120 day suspension of the military commission tribunals to allow for a review by his incoming Administration. His review of what has been done in our names must extend beyond the military commissions.

Speaking for me only

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    In Our Names | 37 comments (37 topical)

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    Its a start (5.00 / 1) (#2)
    by Molly Bloom on Wed Jan 21, 2009 at 11:37:25 AM EST
    It will/would take time to prepare a case for prosecuting. I would not expect any announcement any time soon. That does not relieve our responsibility to call for an investigation based upon the admissions made by Bush, Cheney, Hayden et al.

    I never understood (5.00 / 1) (#4)
    by Steve M on Wed Jan 21, 2009 at 11:41:53 AM EST
    why it would have been so hard to design fair procedures that would have sorted out the good guys from the bad.  They could have done it.  They just never cared to.

    I'm more understanding than some and I accept that, in exigent circumstances, people sometimes make bad choices.  But they had years and years after the fact to get it right with respect to these detainees.  Inexcusable.

    Maybe (none / 0) (#5)
    by squeaky on Wed Jan 21, 2009 at 11:44:51 AM EST
    Because that would have exposed that sham that Gitmo is:
    that there is little or no evidence supporting terror charges on any of the detainees.

    Parent
    incompetance (none / 0) (#8)
    by Molly Bloom on Wed Jan 21, 2009 at 11:53:21 AM EST
    Its my understanding one of the issues with the military tribunal v the UCMJ is traditionally tribunals don't allow conspiracy charges cause every solider would be a conspirator, whereas under adopted in the early 50's would have allowed conspiracy charges. By bypassing the UCMJ as the Bushies lost the use of conspiracy. The problem was Addington, Yoo et al knew nothing about the UCMJ and refused to ask anyone who did.

    Parent
    Interesting (none / 0) (#13)
    by Steve M on Wed Jan 21, 2009 at 12:08:24 PM EST
    But at least with most of these guys, we never really had to convict them of a crime (either in the military or civilian justice system) unless we wanted to.  In order to hold onto them, it would have been completely sufficient just to prove that they were enemy combatants.  That's a much easier standard to meet, and yet they still had no interest in getting the procedures right.

    Parent
    Some stats (none / 0) (#14)
    by jbindc on Wed Jan 21, 2009 at 12:11:59 PM EST
    From Wikipedia, FWIW:

    Link

    Since October 7, 2001, when the current war in Afghanistan began, 775 detainees have been brought to Guantánamo. Of these, approximately 420 have been released without charge. As of May 2008, approximately 270 detainees remain. More than a fifth are cleared for release but must nevertheless remain indefinitely because countries are reluctant to accept them.

    Three have been convicted of various charges:

        * David Hicks was found guilty under retrospective legislation introduced in 2006 of providing material support to terrorists in 2001.
        * Salim Hamdan took a job as chauffeur driving Osama bin Laden.
        * Ali al-Bahlul made a video celebrating the attack on the USS Cole

    Of those still incarcerated, U.S. officials said they intend to eventually put 60 to 80 on trial and free the rest.

    On September 22, 2004, ten prisoners were brought from Afghanistan.

    In July 2005, 242 detainees were moved out of Guantánamo, including 173 that were released without charge, and 69 transferred to the governments of other countries, according to the U.S. Department of Defense.

    By November 2005, 358 of the then-505 detainees held at Guantánamo Bay had had Administrative Review Board hearings. Of these, 3% were granted and were awaiting release, 20% were to be transferred, 37% were to be further detained at Guantánamo, and no decision had been made in 40% of the cases.



    Parent
    incompetance mixed with sadism? (none / 0) (#15)
    by Molly Bloom on Wed Jan 21, 2009 at 12:12:01 PM EST


    Parent
    It's hard not to conclude (none / 0) (#40)
    by Alien Abductee on Wed Jan 21, 2009 at 04:16:16 PM EST
    the detainees were never anything but window dressing for the playing out of the War on Terror and the executive power grab it enabled. How can you read things like this and see the detention of many if not most of these people as in anything but bad faith throughout?:

    For nearly six years, Haji Bismullah, an Afghan detainee at Guantánamo Bay, has insisted that he was no terrorist, but had actually fought the Taliban and had later been part of the pro-American Afghan government...

    The tale Mr. Bismullah's lawyers assembled was one of complex tribal loyalties and evident confusion by his American captors. Sher Mohammed Akhundzada, a Karzai ally and member of the Afghan Senate, described in a sworn statement that he had known Mr. Bismullah and his family for years. When they fought the Taliban, he said, "Haji Bismullah was with us."

    At Guantánamo, Mr. Bismullah insisted he was innocent. He told military officials to contact his brother to vouch for him. The officials concluded that the brother was "not reasonably available" as a witness. At the time the brother, Haji Mohammad Wali, was the chief spokesman for a pro-American provisional governor who regularly gave news conferences, legal filings say.



    Parent
    Dammit! Will you people* please get this straight (5.00 / 0) (#11)
    by scribe on Wed Jan 21, 2009 at 12:04:46 PM EST
    Obama did not order the Gitmo tribunals to stop.  The judge did.

    Obama ordered the DoD to send, down the chain of command, an order to the prosecutors.  That order was to have the prosecutors file a motion with the judge presiding over the kangaroo drumhead tribunals at Gitmo.

    The motion was asking the judge to please grant a continuance of 120 days, in the interests of justice, to allow the new administration to figure out what to do with these tribunals and the defendants.

    That took place last night.

    This morning, the judge granted the motion that the prosecutors filed.

    It was not President Obama who ordered the trials halted.  It was a judge who ordered a continuance.

    Now, this might seem some petty, insignificant technical point as it concerns an illegitimate kangaroo court we all want to see ended.  After all, we got a result we like, right?

    But, it is neither petty nor insignificant.  It is in fact the exact opposite of both.

    In this instance, the President exercised the chain of command to direct the people working for him - the prosecutors - to do the traditional, lawyerly and law-abiding thing:  file a motion with a court seeking relief.

    The prosecutors did the lawyerly, law-abiding thing.  The filed the motion and left it to the judge to decide.

    The judge considered the motion.  There was no requirement that the judge actually grant the motion - in this posture, the judge would have been entirely within the purview of the judicial office to deny the request for a continuance and require the trials to continue.  Anyone who's been a lawyer in a courtroom and come into a bind - scheduling, preparation, reluctant witness - and asked the judge for a continuance to allow resolution of those problems has also been in the position of having the judge deny their application for the continuance and require the case to proceed now.

    So, in this instance, the Executive asked the Judiciary** for relief which the Judiciary did not have to grant.  How is this a change from what we've seen the last 8 years?  (Hint:  how does it compare to, say, David Addington saying "we're one bomb away from being rid of that damned [FISA] court".  Hmmm?)

    That the Judge granted the relief is nice, but more important than that is this:  this was the Executive subjecting itself to the Rule of Law, and not just mouthing the words to sound nice while being nothing other than a naked exercise of dictatorial power.

    If Obama had simply said to the judge:  "stop the trials" - which is what all you short-cutting people are saying he did - then he would have both undercut his own insistence on obeying the Rule of Law (and gutted his own credibility) and ratified all the dictatorial power grabs of the last 8 years (and made a mockery of all his rhetoric yesterday and in the entire campaign).  If we want to end the dictatorial nature of the Bush junta and expel it - like a festering splinter - from the body of our politics and nation, then we have to do so in things large and small.  And that means following process, procedure, and the Rule of Law - in all its particulars.

    Moreover, the sloppiness of talking as though he acted dictatorially when in fact he did not, does nothing to change and everything to perpetuate in the public mind the propaganda of President-as-dictator and commander in chief of the nation, something Bush was quite assiduous in cultivating.  That whole idea needs to go.

    Substance is important and Gitmo and all the black-site prisons must be closed, the idea of torture (let alone its practice) and all the other constitutional massacres of the last administration rooted out to the last filament.  But as (or even more) important is doing it in the right way.  Process is important.

    After all, if we merely replace a Republican dictator with a Democrat who acts in the same way, what have we changed?

    So, please, keep your facts straight and make your statements accurate.

    Oh, and while you're at it:  the Obama administration asked for and received, from the federal Article III judges hearing several habeas cases in D.C., two-week continuances to evaluate and decide how the government intends to proceed in them, too. The government filed a motion, and the judge granted that motion, too.

    Rule of Law, for real.

    * i.e., everyone who says "Obama ordered the gitmo tribunals to stop"

    ** I know - they're all Article II employees, but there is a distinction between a military prosecutor, a military judge, and a military defense lawyer.  And each of them won't let you forget it.  They all have different chains of command and, more importantly, officer evaluation.

    That's been noted (5.00 / 0) (#12)
    by Jeralyn on Wed Jan 21, 2009 at 12:07:48 PM EST
    and the post corrected. Please hold your anger. Your tone is uncalled for. There's another post up with links to the documents.

    Parent
    Heh (none / 0) (#16)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:13:23 PM EST
    Practically speaking, once Obama gave the order, the result was a foregone conclusion.

    thus while formally the judges issued the orders, the reality is President Obama did.

    Parent

    Thank you. (none / 0) (#19)
    by scribe on Wed Jan 21, 2009 at 12:18:09 PM EST
    The correction came up while I was writing the comment.

    We have to at all costs avoid three things if we are to succeed in cleaning up the mess left us by the Bush/Cheney junta.  The first two are sloppy thinking and adopting the propaganda we were fed by them.  The third is a results-only orientation.  

    Those are the objects of my anger, and not people in particular.

    Between the first two, the former facilitates the latter and, in a blog/forum devoted to law and combatting (or at least exposing) injustice, both are intolerable.  And I've been seeing them all day on this topic.

    As to the third, one needs only remember an old saying:  "Ende gut, alles gut"* and where that sort of sweep-the-process-under-the-rug attitude always winds up.  How we get to the end is as, or more, important than getting to the end itself.
    -
    *  Meaning "if it ends well, everything's good" or, in Shakespeare's turn of the concept "All's well that ends well"

    Parent

    there is muddle in your own thinking (none / 0) (#20)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:23:15 PM EST
    in my view.

    The military commissions are not Article III courts.

    In fact, President Obama has the power to abolish the military commissions (in that sense, he did not have to order prosceutors to seek a 120 day suspension of proceedings, he could have frozen them by order.)

    Eventually, it is likely President Obama will order the military commissions system abandoned in toto. Or so we hope.

    I think that your comment is quite misguided in thinking such actions would be tantamount to dictatorship.


    Parent

    I think you are wrong - see (none / 0) (#24)
    by scribe on Wed Jan 21, 2009 at 12:32:56 PM EST
    my comment at #22 on this thread.

    Parent
    Though, to be sure, (none / 0) (#25)
    by scribe on Wed Jan 21, 2009 at 12:34:25 PM EST
    the Military Commissions might be Article I courts.

    Because of the MCA, though, they are no longer solely in Article II (if they ever could have existed as such).

    Parent

    I disagree (none / 0) (#28)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:39:37 PM EST
    The MCA does not create the military commissions nor does it direct the President to create them.

    It authorizes the President to so act.

    This is an Article II court without question.

    Parent

    I think that was deliberate (none / 0) (#33)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:50:35 PM EST
    in that he requests the 120 days expressly to consider what process he wishes to follow.

    I'm ok with that, for now.

    Parent

    For the record (none / 0) (#17)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:15:54 PM EST
    this is inaccurate - "So, in this instance, the Executive asked the Judiciary** for relief which the Judiciary did not have to grant.  How is this a change from what we've seen the last 8 years?  (Hint:  how does it compare to, say, David Addington saying "we're one bomb away from being rid of that damned [FISA] court".  Hmmm?)"

    And it is not an insignificant error in fact.

    One of the major sticking points here is, as you note, the short circuiting of Article III courts in this process.

    Parent

    How is it inaccurate? (none / 0) (#21)
    by scribe on Wed Jan 21, 2009 at 12:24:54 PM EST
    The president (executive) ordered his agents (the prosecutors) to ask the military judge (the judiciary), by way of a motion, to do something.

    The potential for confusion, since all the personages are in the military, is why I noted in my second endnote that military prosecutors, judges and defense lawyers have entirely separate chains of command and evaluation.  I have no doubt that if we dig into the UCMJ far enough, we will find a provision which forbids the President from ordering a military judge to rule in a particular way.  Otherwise, we wind up with a repeat of the General Billy Mitchell court-martial trial and Coolidge putting his thumb on the judge and panel to convict.  Since we haven't seen that sort of problem since the 20s, I suspect the UCMJ codifies the solution to that problem.

    Moreover, to illustrate the same point, I also noted that the government asked an Article III judge for the same kind of relief - a continuance - in a number of habeas cases and that the relief was granted.

    Parent

    The military commissions (none / 0) (#23)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:32:31 PM EST
    are administered by the Executive Branch, not the judiciary.

    As I noted before, President Obama is empowered to abolish the military commissions.

    The Military Commissions Act empowered the President to create the commissions and empowers him to dismantle them.

    The inaccuracy is the view that the President does not have plenary power to abolish the military commissions. He does.

    Indeed, many of us hope that is what he will do.

    Parent

    I would also add (none / 0) (#18)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:18:02 PM EST
    for the record, that if and when President Obama does in fact abolish military commissions, is it your view that that will be a dictatorial act?

    Parent
    Seeing as how they were first created (none / 0) (#22)
    by scribe on Wed Jan 21, 2009 at 12:31:17 PM EST
    by Executive fiat, then their existence was ratified by the MCA (a statute), yes.  I say that because abolishing them would be destroying a creature of statute, and acting expressly contrary to the Congress' expression of authority.  A place where the President's power is at a nadir...(Youngstown, remember?)

    To abolish them entirely, the MCA would have to be repealed.

    All that does not mean the President could not prevent them from going forward by acting, consistent with statute, to have the detainees charged in a federal criminal court and treated in that manner and no longer using that power provided in the MCA to convene military commissions.  But, unless and until the MCA is repealed, that power to convene them would be lying around like the proverbial loaded gun (Youngstown, again) waiting for someone to pick it up and use it.

    Parent

    you would be mistaken imo (none / 0) (#26)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:37:04 PM EST
    The MCA authorizes the President to create the military commissions.

    It does not direct him to do so.

    There is no Congressional directive involved in the MCA, but rather the grant of power by the Congress to the President. The President's exercise of that power is not compelled by the MCA.

    There is no Youngstown issue at all.

    Your analysis strikes me as curious. Indeed, it seems to me that your analysis is that President Obama can not act on military commissions at all unless the MCA is amended or repealed. That seems wrong to me.

    Parent

    You are mistaking my point. (none / 0) (#30)
    by scribe on Wed Jan 21, 2009 at 12:47:33 PM EST
    What I am saying is this:

    The MCA ratified Bush's creation of the tribunals, an act which the S.Ct. had called into serious question.

    In this, Congress spoke and, under Youngstown, put the President's action on a stronger footing than it had been before (when he acted - depending on how you want to view it - either in the absence of Congressional expression or contrary to it).

    But, in passing the MCA, the Congress explicitly made clear the authority to convene military commissions.

    No president has to convene a military commission to try an alleged terrorist.  The president can bring before a regular federal criminal court all of the alleged terrorists his agents catch.  Unless and until a President convenes a military commission the power to do so lies dormant.  Not because it doesn't exist, but because it is not being exercised.

    But, as long as the MCA exists, that Congressionally-granted power to haul anyone before a military commission continues to exist.

    Thus, the only way to eliminate even the potential for military tribunals such as we have here is to (a) repeal the MCA and (b) to forestall future Presidents and their Yoos from claiming inherent authority, outlaw them in the future in a new act.

    Since I do not expect a big "inherent authority" argument from the Obama admin on any front, I suspect that (a) is the only pressing matter, though (b) would be nice.


    Parent

    the existence of the power (none / 0) (#32)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:49:29 PM EST
    is obviously not the same thing as the exercise of the power.

    I stand by my point - the President can abolish the commissions at any time, irrespective of the "judiciary" (military commission judges) or the Judiciary or the Congress for that matter.

    Parent

    I want to abolish the power (none / 0) (#34)
    by scribe on Wed Jan 21, 2009 at 12:57:42 PM EST
    to convene or create them at all.  Forever.

    It's a little more radical than just shutting them down.

    Parent

    A different point (none / 0) (#35)
    by Big Tent Democrat on Wed Jan 21, 2009 at 01:01:36 PM EST
    and to my way of thinking, not as urgent as having the President exercise his existing power now.

    Parent
    Let's both go watch (none / 0) (#36)
    by scribe on Wed Jan 21, 2009 at 01:13:24 PM EST
    this, and calm down about dancing angels on pinheads.

    Parent
    Clarification (none / 0) (#31)
    by Big Tent Democrat on Wed Jan 21, 2009 at 12:47:49 PM EST
    Your distinction then is between the President not using the commissions and the President abolishing the commissions.

    I do not see your argument as valid in that the President would be abolishing the existing commission and would still have the power to convene a new military commission.

    To me that means the President can abolish the commissions and of course could empanel a new commission (or the old one.)

    Not following your point here, unless it is to remove the power from the President to convene commissions. In which case, of course you are right, the MCA would need to be repealed.

    But I do not think the law needs to be repealed for the President to dismantle the current commission.  

    Parent

    the obama administration (none / 0) (#1)
    by cpinva on Wed Jan 21, 2009 at 11:36:45 AM EST
    could easily spend the next 6 months reviewing all that was done "in our names" for the past 8 years, and nothing else.

    i'll assume they have a priority list of items to be attended to as quickly as possible, this among them.

    tangential (none / 0) (#6)
    by Nasarius on Wed Jan 21, 2009 at 11:50:23 AM EST
    I've recently been hearing a lot of hand-wringing over which country will take former detainees, with specific reference made to one Russian man. Some European countries are discussing the issue.

    The simple, blindingly obvious option was not even mentioned: why shouldn't the US grant them asylum? After years of unjustified detention, it's the least we can do. And if there are still suspicions, all the better for authorities who can keep an eye on people within our borders.

    I posted a diary (none / 0) (#7)
    by lilburro on Wed Jan 21, 2009 at 11:51:19 AM EST
    on the need for review, investigation, and possible prosecution, of CIA officials a few days ago over on the sidebar.  Kind of a downer at the time - the day before Inauguration.  But Hayden is completely, completely full of it.  There is absolutely no reason to trust the CIA's loudmouthed public reps.  I hope Obama will push against Feinstein and help us arrive at some investigation of the CIA's behavior and role in policy-making.

    Great Start But....Hold Democrats Accountable Too! (none / 0) (#9)
    by blogname on Wed Jan 21, 2009 at 12:02:51 PM EST
    This is a great start!  I commend this action.  We must make lists, take names, and hold people accountable.  

    But I submit: We cannot withhold criticism of Democrats who were complicit in many of the practices that we assert made Bush's presidency a complete disaster.  Democrats, including Obama, embraced some of these policies, and we should criticize them just as we criticize Republicans. Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

    Speaking Of Prosecutions (none / 0) (#27)
    by squeaky on Wed Jan 21, 2009 at 12:38:12 PM EST
    In remarks that aired on German television last night, Manfred Nowak, the United Nations Special Rapporteur on Torture, urged the U.S. to pursue former President George W. Bush and defense secretary Donald Rumsfeld on charges that they authorized torture and other harsh interrogation techniques:

    "Judicially speaking, the United States has a clear obligation" to bring proceedings against Bush and Rumsfeld. [...] He noted Washington had ratified the UN convention on torture which required "all means, particularly penal law" to be used to bring proceedings against those violating it.

    "We have all these documents that are now publicly available that prove that these methods of interrogation were intentionally ordered by Rumsfeld," against detainees at the US prison facility in Guantanamo Bay, Cuba, Nowak said.

    think Progress

    Chief Prosecutor named (none / 0) (#37)
    by jbindc on Wed Jan 21, 2009 at 01:15:12 PM EST
    David Iglesias, fired New Mexico US Attorney will be Chief Prosecutor at Guantanamo.

    Link

    Happy to see that (none / 0) (#38)
    by ruffian on Wed Jan 21, 2009 at 01:25:51 PM EST
    Seems like a good fit. He can handle the truth.

    Parent
    Interesting that the Bush admin (none / 0) (#39)
    by ruffian on Wed Jan 21, 2009 at 01:29:48 PM EST
    was holding up this appointment. Classy right to the end, weren't they?

    Parent
    In Our Names | 37 comments (37 topical)

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