As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Thursday, February 19, 2009

Binyam Mohammed and The Need For Justice

Glenn Greenwald has the sordid details of the Binyan Mohammed case, which are causing a stir in Britain and around the world but barely a ripple here. Here's his ultimate summary:

So, to recap: first, the U.S. abducted Mohamed and refused to provide him with any access to lawyers or the outside world. Then -- with no due process afforded -- we shipped him around for the next couple of years to various countries that are the most notorious practitioners of torture, where agents of those countries and the CIA jointly conducted interrogations by brutally torturing him. Then, once he was broken beyond the point of return, we shipped him off to Guantanamo.

After six years in detention, we finally charged him with crimes in a Guantanamo military commission -- based on confessions we extracted from him -- but refused to provide him with the exculpatory evidence showing that those confessions were extracted by torture, even though, as the High Court noted:

"For several centuries the common law has excluded evidence obtained by cruel, inhuman or degrading treatment; it cannot be used to secure a conviction."

We then threatened Britain that they had better keep the facts surrounding the torture concealed from the world or else we would no longer notify them of terrorist threats aimed at them. And finally, when Mohamed sued in American courts over the rendition and torture he suffered, the U.S. Government -- first the Bush administration and then the Obama administration -- insisted that courts must not allow him a day in court because any discussion of what was done to him was a "state secret" and any disclosure at all would harm national security.

One thing that's missing, notable if only for its unbelievable nature, is that Mohammed was imprisoned as a terrorist after confessing to reading a satirical article in a magazine, written by noted terrorist Barbara Ehrenreich, about how to make an H-bomb. Really.

There was a wild claim a week or so ago that the CIA was holding the torture information from President Obama, which is absurd considering that he has unilateral ability to classify and declassify documents (unless they're protecting him from criminal liability). While some US lawmakers are demanding that the evidence be shown, and others are trying to get the State Secrets Protection Act revived so that the Administration cannot hide behind national security any longer, ultimately we're still stuck with a group of government officials putting self-interest above the rule of law:

One of the many things that bothered me about the Obama administration's invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.

(As Hilzoy makes reference to, is does look like Mohammed may actually be released shortly.)

Ultimately, this is what the Administration is throwing away by blocking accountability, while parroting the talk of how we value the law in America and we hold no man above it. An international group of judges have made their pronouncement on what this evasion of responsibility does to our moral standing and values, and it's a powerful statement:

"We have been shocked by the damage done over the past seven years by excessive or abusive counterterrorism measures in a wide range of countries around the world," said Arthur Chaskalson, a member of the International Commission of Jurists, in a statement announcing results of a three-year study of counterterrorism measures since the Sept. 11, 2001, attacks.

"Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights,'' said Chaskalson, a former chief justice of South Africa.

"It would be better that the government recognized that there are risks -- rather than frightening people in order to be able to pass laws which restrict civil liberties, precisely one of the objects of terrorism -- that we live in fear and under a police state," said Stella Rimington, former head of MI5, the domestic intelligence-gathering agency.

None of this changes unless we recognize that crimes were committed and that they must be adjudicated, with those held responsible brought to account. Otherwise, the cancer will metastasize with another President in another era and it will come back worse than before. In addition, continuing to ignore treaty obligations and flout international law while demanding that other nations be held to that same standard is crippling for American legitimacy. Indeed, some in the Administration claim to know that there are some terrorist suspects who we simply cannot prosecute and must hold indefinitely, while simultaneously knowing that there are individuals inside the previous government who committed and authorized direct crimes but cannot be held responsible. The double standard is staggering.

Amid such competing viewpoints, a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld (2006). In his first appearance before the Supreme Court, he persuaded a majority of the Justices to declare that the Guantánamo military-commission system was illegal, arguing that Congress had not authorized the commissions. Katyal’s new job is to represent the government before the Supreme Court. Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Amazing. We have powerful individuals in the Obama Administration arguing for a parallel justice system in the United States. No wonder Charlie Savage calls this a return to Bush-era national security policies. Perhaps the most disgusting thing Savage digs up is this quote from Greg Craig, the White House counsel:

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

"The institution of the Presidency" is seen as more important than the laws the President swears to uphold and execute. And thus an empire crumbles.

While I agree with Glenn Greenwald that there is a distinction between what Obama Administration officials say and what the President will actually do, and that Obama has the opportunity to make a better outcome here (especially if pressured by a newly emboldened Congress), the essential truth cannot be questioned:

Nonetheless, there is no question that Obama has already taken some truly alarming steps, including -- in addition to those listed above -- invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I've become convinced -- for reasons Darren Hutchinson has argued and Savage today pointed out -- that there's more potential mischief in that policy than I immediately recognized.

There's just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions -- he just needs more time; it's only been three weeks -- is a complete straw man.

The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design. There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps. In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors. But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial). In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen. Those fights are still ones that will be waged.

And we must wage them. We must fight for accountability and justice, starting with a full investigation into Bush-era crimes and a full release of those reports already completed. The American people deserve the truth. Furthermore, we must ensure that the changes in policy resulting from the new Administration on these issues are real changes and not the same policies with a friendlier face.

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