The Self-Entangling Giant

White House officials are trying to prepare the ground for the fact that they're not going to close Guantanamo on time. I believe Obama boasted in his UN address that he announced the closure of Gitmo.

Senior administration officials told The Associated Press that difficulties in completing the lengthy review of detainee files and resolving thorny legal and logistical questions mean the president's self-imposed January deadline may slip. Obama remains as committed to closing the facility as he was when, as one of his first acts in office, he pledged to shut it down, said the officials, who spoke on condition of anonymity in order to more freely discuss the sensitive issue. They said the White House still was hoping to meet the deadline through a stepped-up effort.

The prison in Cuba was created by former President George W. Bush after the Sept. 11, 2001, terrorist attacks as a landing spot for suspected al-Qaida, Taliban and foreign fighters captured in Afghanistan and elsewhere. But it has since become a lightning rod of anti-U.S. criticism around the globe. There are approximately 225 detainees still being held at the prison.

People may give a little slack if we're talking months, but of course we won't see the closure of American prisons holding suspects indefinitely. Bagram is still open, and the White House is trying to run some B.S. military commission-like trial to give the illusion habeas rights, which fall far short of that goal. They haven't set the rules for military trials at Guantanamo, or found a location for the prisoners they want to keep, or host countries that will take the ones who can be let go. And they want to use Bush-era theories about the authorization of military force against Al Qaeda giving them authority to use preventive detention and hold suspects without charges. This may be a small victory because they are not setting preventive detention into statutory authority through Congress, but it remains the case that this Administration still wants to hold suspects without charges, is doing so at Bagram and is dragging their feet on closing Guantanamo.

This leads to a more general point: when it comes to uprooting ("changing") the Bush/Cheney approach to Terrorism and civil liberties -- the issue which generated as much opposition to the last presidency as anything else -- the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers. With great fanfare, they announced the closing of CIA black sites -- at a time when none was operating. They trumpeted the President's order that no interrogation tactics outside of the Army Field Manual could be used -- at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo "inherent power" theories -- while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo -- while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their "changes" exist solely in theory -- which isn't to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.

Greenwald references this Gary Wills article in forwarding the argument that a country in a near-permanent state of war will always assert these kind of expansive powers for reasons of national security :

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

The White House has replaced the leadership dealing with Guantanamo closure, and maybe they'll regroup and get the place closed in short order. But the permanent national security society, and the political momentum behind it, will resist real transformation in this area.

Disappointment On Civil Liberties

I think I was too soon in my tempered praise for Obama's decision on Bagram Air Force Base. Yes, prisoners there will have an opportunity to challenge their detention, but basically using the same process found unconstitutional when tried at Guantanamo. This still denies prisoners basic habeas rights in a court of law and allows the government to abduct anyone and send them to Bagram indefinitely, where they cannot challenge their detention properly. In fact, since the action was in response to a court order to allow non-Afghan prisoners a right to plead their case, the detainees will probably have no opportunity to act on this until years of litigation over whether this system can pass Constitutional muster. As one of the representatives for Gitmo detainees said yesterday, "It’s another stall. And one I would have expected from the Bush administration but not the Obama administration."

Boy, how many times have we heard that? In addition to turning Bagram into Guantanamo East and seemingly stocking prisoners there outside any review process, this Administration wants to create a legal process for preventive detention, enabling them to hold anyone without charges indefinitely, which Russ Feingold has called "a hallmark of abusive systems that we have historically criticized around the world." Obama's CIA continue to use the state secrets privilege to get out of a host of different accountability measures. And just yesterday, the Administration announced that they support renewing all sections of the Patriot Act.

The Obama administration has for the first time set out its views on the controversial USA Patriot Act, telling lawmakers this week that legal approval of government surveillance methods scheduled to expire in December should be renewed, but leaving room to tweak the law to protect Americans' privacy.

In a letter from Justice Department officials to key members of the Senate Judiciary Committee, the administration recommended that Congress move swiftly with legislation that would protect the government's ability to collect a variety of business and credit card records and to monitor terrorism suspects with roving wiretaps.

But Assistant Attorney General Ronald Weich also told Democrats that the administration is "willing to consider" additional privacy safeguards advocated by lawmakers, so long as the provisions do not "undermine the effectiveness of these important authorities."

The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.

Well, that's nice, they're "willing to consider" privacy safeguards. It's not like we've had multiple reports of the FBI violating privacy through unauthorized national security letters or wiretaps that capture the information of individual Americans. With Russ Feingold and Dick Durbin working on a bill including these safeguards, some advocacy groups are optimistic, but given the Administration record on civil liberties to this point, I'm not sure why.

The President, a Constitutional scholar, is doing what executives in the executive branch typically do - aggrandize their power in the manner of the previous occupant of the office. The courts and Congress need to do what's necessary to stop them. But when the previous President so flagrantly abused the privacy protections and civil rights of American citizens and violated the country's laws, you'd think that the new man on campus would trim his sails a little bit.

Better News On Bagram

Barack Obama has been lit up for not being the be-all and end-all to liberals for months now, and a fair amount of those criticisms are warranted. The storm of criticism has also driven out of the conversation what has been a pretty decent week for those who want to see a bit more fairness and humility in our domestic and foreign policy. In addition to the resumption of talks with Iran, the Administration will pursue bilateral negotiations with North Korea. The raising of tariffs against Chinese tire imports, while met with petulance and idle threats by the PRC, represents a genuine concern for American manufacturing the likes of which we haven't seen in decades. And this announcement on detainee reviews at Bagram AFB, while not wholly sufficient, is nevertheless welcome.

The Obama administration soon plans to issue new guidelines aimed at giving the hundreds of prisoners at an American detention center in Afghanistan significantly more ability to challenge their custody, Pentagon officials and detainee advocates say.

The new Pentagon guidelines would assign a United States military official to each of the roughly 600 detainees at the American-run prison at the Bagram Air Base north of Kabul. These officials would not be lawyers but could for the first time gather witnesses and evidence, including classified material, on behalf of the detainees to challenge their detention in proceedings before a military-appointed review board.

Some of the detainees have already been held at Bagram for as long as six years. And unlike the prisoners at the Guantánamo Bay naval base in Cuba, these detainees have had no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as “enemy combatants,” military officials said.

The changes, which are expected to be announced as early as this week after an obligatory Congressional review, come as the Obama administration is picking through the detention policies and practices of the Bush administration, to determine what it will keep and what it will abandon in an effort to distance itself from some of the harsher approaches used under President George W. Bush. Human rights groups and prisoner advocates cautiously hailed the policy changes but said the government’s track record in this area had been so poor that they wanted to see concrete results before making hard judgments.

These are not habeas trials under the American system of justice, which should follow for those detainees brought to Bagram from other countries and not as part of the Afghan war. But this is in response to a federal judge's ruling that would have allowed those very prisoners to challenge their confinement, so hopefully it can be put together in such a way that satisfies the principle. And this Defense Department official's quote is encouraging:

“We don’t want to hold anyone we don’t have to hold,” said one Defense Department official, who spoke on the condition of anonymity because the guidelines have not been formally announced. “It’s just about doing the right thing."

Karen DeYoung and Peter Finn have more.

The Silent Riot At Bagram

From the did you know file, did you know that the United States continues to operate, and assert the legality of operating, a detention facility that indefinitely locks up suspects without charging them? No, not Guantanamo, which the President has vowed to close. I'm talking about Bagram Air Force Base in Afghanistan, which is not merely a POW facility but which ships in terror suspects from all over the world and confines them in a legal black hole. There is little knowledge of this or outcry about it in the United States, but the prisoners themselves have begun acts of civil disobedience.

The prisoners at the largest U.S. detention facility in Afghanistan have refused to leave their cells for at least the past two weeks to protest their indefinite imprisonment, according to lawyers and the families of detainees.

The prison-wide protest, which has been going on since at least July 1, offers a rare glimpse inside a facility that is even more closed off to the public than the U.S. detention facility at Guantanamo Bay, Cuba. Information about the protest came to light when the International Committee of the Red Cross informed the families of several detainees that scheduled video teleconferences and family visits were being canceled.

Representatives of the ICRC, which monitors the treatment of detainees and arranges the calls, last visited the Bagram prison on July 5, but inmates were unwilling to meet with them.

"We have suspended our video telephone conference and family visit programs because the detainees have informed us they do not wish to participate in the programs for the time being," said Bernard Barrett, a spokesman for the organization.

The 620 prisoners at Bagram, more than twice that of Guantanamo, have no access to attorneys. The facility is being rebuilt to hold even more prisoners, up to 1,000. And at least over three dozen of them have been captured around the world and transferred to Bagram, with no connection whatsoever to the war in Afghanistan.

This is a blight on our country, we must deal with the human rights and legal abuses at all of our detention facilities, including Bagram. What's disgusting is that the prisoners are more actively engaged in this than almost anyone in this country.

...and then you have people like Lindsey Graham, who thinks we should hold detainees without charges "until they die."

And Justice For None

Glenn Greenwald has the gory details about yet another civil liberties backtrack for the White House, introducing the new term of "presidential post-acquittal detention power." Basically, if the Administration puts a terror suspect on trial and they are actually found innocent, the President reserves the right to detain them anyway for an indefinite period.

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal: to ensure that anyone the President wants to keep imprisoned will remain in prison. They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates. This is how I described it when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree. That added step renders my criticism of Obama's conception of "justice" even more applicable:

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals). Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

I get the feeling that if those left at Guantanamo wanted to engage in mass suicide right now, someone in the White House would give the go-ahead to mix the Kool-Aid for them. This is just a problem they don't want to solve.

And of course, the focus on Guantanamo, and the fate of the prisoners there, keeps everyone's eye off of those indefinitely detained at Bagram Air Force Base in Afghanistan, without charges, and in greater numbers at this point than in Cuba. Furthermore, what Obama's team has not answered is if they plan to continue these show trials and preventive detention tactics for those they capture, not just the artifacts of the Bush regime. That answer could come soon.

We have, through expansion of executive power, extreme Congressional deference and a failure to counteract the push in the popular culture, allowed the arguments of reactionaries - that any suspect in the so-called "war on terror" must be detained indefinitely until the end of combat in an endless, figurative war - to take hold in the public mind. When these issues made the public debate, when torture became the stuff of online poll topics, when they were allowed legitimacy, we inevitably and inescapably lost that debate. The genie has left the bottle, and while a popular President could put it back in, he has shown absolutely no willingness to expend an ounce of political capital to do so. And we will look back on decisions like this as part of a sad legacy, regardless of the rest of the tenure.

More Collateral Damage In The War On Terror

This guy's had some time of things this decade, but he may finally get to go home.

Abdul Rahim Abdul Razak al-Janko was tortured by al-Qaeda and imprisoned by the Taliban for 18 months because the groups' leaders thought he was an American spy.

Abandoned by his captors in late 2001, he was picked up by U.S. authorities, who shipped him to the U.S. military prison at Guantanamo Bay, Cuba, on suspicion that he was a member of the two groups.

Yesterday, a federal judge ordered Janko's release, saying the government's legal rationale for continuing to detain him "defies common sense."

In a 13-page opinion that he read from the bench, U.S. District Judge Richard J. Leon ordered the government to engage in diplomatic efforts to find a country that would host the 30-year-old detainee. It is unlikely that he will be sent to his native Syria. His attorney, Stephen R. Sady, would like Janko sent "to a safe haven."

"This is a tragedy," Sady said. "The guy was horribly tortured and then tries to report his human rights violation to the U.S. forces. He is a brave person and wants to tell his story. Instead, he gets mistaken for being a terrorist. . . . This is a nightmare for an innocent man being accused of all of these things."

Amazingly, the al-Janko story doesn't even come to mind when thinking of all the injustices meted out during this so-called war on terror. That's how deep the level of injustice has become. I never heard of this guy before reading this story.

When he is released, I hope somebody asks him who treated him better, al Qaeda or the Americans.

By the way, this was a habeas hearing, so remember that the Bush Administration didn't want this man to ever have this opportunity - and neither would the Obama Administration, were al-Janko kept at Bagram Air Force Base.

Stories Of The Tortured

Just a news flash for the 10 people who still think we don't torture, or that the program wasn't widespread policy across all of our detention centers: we do.

(CNN) -- As one of the right-hand men to Taliban leader Mullah Omar, Mullah Abdul Salam Zaeef was one of the first Taliban leaders arrested when the United States began military operations in Afghanistan.

As a detainee, he was held both at Afghanistan's Bagram Air Base and at Guantanamo Bay in Cuba -- spending more than three years in Guantanamo before he was released in 2006.

Now free, Zaeef -- who claims he is no longer a Taliban member -- alleges the military engaged in abusive treatment both at Bagram and Guantanamo. He says he is still bitter about his time there. Closing Guantanamo Bay, he told CNN, is only part of the justice those detained there deserve.

"It was a bad stain on American history," he said. "If they are closing Guantanamo for justice, they have to bring the people who are torturing people, who abuse people, to justice."

The military has classified those like Zaeef as "enemy combatants," although the Justice Department in March said it would dispose of that classification. The U.S. military in Afghanistan said it was not authorized to comment on Zaeef's or any other individual case.

"I didn't see a worse situation in my life than Bagram," recalled Zaeef. "They were beating me, they put me in the snow, in the cold, until I was unconscious."

Zaaef didn't "return to jihad," as the New York Times put it, but he certainly expressed how those beaten and tortured in custody would come out of that seeking revenge, even if they had no Islamist tendencies beforehand. Hard to say that these people "returned" to the fight. This is what former elite interrogator "Matthew Alexander" (a pseudonym) means when he says that torture cost us thousands of American lives and created far more terrorist attacks than it stopped.

"At the prison where I conducted interrogations," responded Alexander, "we heard day in and day out, foreign fighters who had been captured state that the number one reason that they had come to fight in Iraq was because of torture and abuse, what had happened at Guantanamo Bay and Abu Ghraib."

Read the story, too, of Lakhdar Boumediene, picked up off the street and falsely accused of terrorism, held at Guantanamo Bay and questioned about events about which he didn't know anything, stuck with a feeding tube and force-fed through a nostril for TWO YEARS, and finally released in Paris when the government had to admit they had no proof. He's a strong man that just wants his quiet life back.

This is why even David Petraeus understands the counter-productive nature of torture. It destroys our ideals and debases our values. It creates a recruiting tool for terrorists and leaves our own troops open to attack and abuse. As a practical matter as well as a matter of law, it makes no sense.

Pushing Back On A Runaway Executive

The New York Times editorial board steps up with an excellent editorial about the White House's duplicity on Bagram Air Force Base.

The Obama administration is basking in praise for its welcome commitment to shut down the American detention center at Guantánamo Bay. But it is acting far less nobly when it comes to prisoners held at a larger, more secretive military detention facility at Bagram Air Base in Afghanistan.

In February, the new administration disappointingly followed the example of the Bush White House in opposing judicial review for prisoners who have been indefinitely detained at Bagram without any charges or access to lawyers. The administration has now added to that disappointment by appealing a new federal court ruling extending the right of habeas corpus to some Bagram detainees.

Bagram differs from Guantánamo in that it is located in an active theater of war. Historically, habeas corpus has not extended to detainees held abroad in zones of combat. But the evidence suggests it was the prospect that Guantánamo detentions might be subject to judicial oversight that caused the military to divert captives to Bagram instead [...]

In the absence of a fair review process that complies with international and military law, there is no reason to feel confident that everyone detained at Bagram deserves to be there. The administration should focus on putting such a process in place, instead of wasting its energies in an appeal that simply recycles extravagant claims of executive power and perpetuates the detention policies of the Bush administration.

I think the boldfaced paragraph is the important one here, actually. The Bush Administration set up Bagram to be the next Guantanamo as a reaction to the series of court battles they were losing. By defending the practice, Obama is shielding the previous Administration from their own culpability in indefinite detention and acting in contravention of court-ordered mandates, as has disappointingly become standard practice.

Meanwhile, Greg Sargent reports that the White House has no opinion on legislation that would significantly constrain the ability for the executive to use the state secrets privilege, legislation that was sponsored by then-Senator Joe Biden and then-Senator Hillary Clinton. The Congress needs to assert itself and check the runaway executive here.

Why Dawn Johnsen Is Important

Here's yet another civil liberties issue where the Obama Administration has decided to mirror the Bush Administration in order to defend their practices.

The Obama administration yesterday appealed a judge's decision granting three detainees at a U.S. military prison in Afghanistan the right to challenge their detention in U.S. courts, arguing partly that compliance would inhibit the future capture of Pakistani citizens for detention by U.S. forces in Afghanistan.

The appeal makes clear that, despite the ruling this month by U.S. District Judge John D. Bates, the Obama administration for now wants to stick with a policy set by President George W. Bush that those incarcerated by U.S. troops in foreign prisons have no U.S. legal rights. But officials said that did not foreclose a change of heart after the completion in July of a comprehensive review of detainee policy.

"While that review is pending, we concluded that it was necessary to appeal this ruling," said Justice Department spokesman Dean Boyd. Otherwise, he said, the detainees would immediately have access to U.S. courts, which the administration has long said would impose large burdens on its military forces in the region.

That's really not the issue at all, and the Obama lawyers are making rash assumptions to maintain untrammeled power. The judge's ruling applied to non-Afghans who were captured in areas completely separate from the Afghan conflict, who ought to have the right to habeas corpus proceedings to challenge their detentions in court. The lawyers let their slip show just a couple paragraphs later, explaining that the American system of justice is simply too taxing.

Holding such proceedings would force the military to reveal details about the "the place of capture" and the "identity of U.S. or foreign forces or entities" that conducted the operation, the appeal said. It added that keeping records on such matters and litigating the cases would divert U.S. forces from their counterterrorism missions.

Following the law would divert their attention, so, stuff it.

Glenn Greenwald has lots more on this, as you would expect, including the powerful use of then-candidate Obama's words against him - in talking about the Supreme Court's decision in Boumediene, which allowed habeas rights for all prisoners at Guantanamo, Obama said:

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.

He's essentially turned his back on that argument now, considering that Bagram and Guantanamo are no different when it comes to the subjects who were picked up around the world and flown far away to these prisons without formal charges made.

One thing he does not address is the importance of a strong, independent voice at the Office of Legal Counsel. As I understand it the OLC is the Supreme Court inside the executive branch. The decisions that the executive wants to make get checked by the legal opinions coming out of OLC. Now, in the Bush Administration those opinions were manufactured by the likes of John Yoo and Jay Bybee to achieve a desired result. By all accounts, Dawn Johnsen is quite different, and she has repeatedly gone on record against the use of state secrets and other deprivations of the Bush Administration. But she is not yet in office, with her confirmation being held up in the Senate. What exactly does this mean? Is there any review process going on inside DoJ? Is the acting OLC chief a Bush-era retread or someone without strong opinions on the issues, getting rolled by Eric Holder and the desires of the President to defend Bush policies? We don't know, as all of that happens outside the public eye. But this certainly does argue for Johnsen to be quickly confirmed, to at least see if the decisions change once an independent voice committed to civil liberties protections and the rule of law has at least some power to dictate what the executive can and cannot do.

...just to update, I sought some clarification here, and OLC wouldn't necessarily have input on every single DoJ decision. It is unclear whether the decision on Bagram would fall under the purview of OLC at all. And the Attorney General can choose to override the OLC, in any case. I still think Johnsen's absence isn't exactly helping matters, and progressives shouldn't be silent in arguing for her confirmation, particularly because the opposition is being led by the conservative smear machine. But it's hard to speculate whether or not her presence would be helpful in this specific case.

Very Serious Torture Apologist

Rachel Maddow had her Frost/Nixon moment last night when she got to question Colin Powell about his role in authorizing and directing torture. He was part of the principals meetings where interrogation techniques were discussed, and while practically every journalist who has ever interviewed Powell in the past year has neglected that fact, Rachel did not.

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Good for Rachel for pressing Powell on this - I'm sure the very serious people around NBC News tut-tutted the ignominy of their friend the noble soldier having to take this abuse. Except this is a familiar pattern for Powell. He's been covering for abuses at the highest levels since he was merely an Army major:

As Powell notes in his 1995 autobiography, My American Journal, in 1969 he was an Army major, the deputy operations officer of the Americal Division, stationed at division headquarters in Chu Lai. He says that in March of that year, an investigator from the inspector general's office of Military Assistance Command Vietnam (MACV) paid a call. In a "Joe Friday monotone," the investigator shot questions at Powell about Powell's position at the division and the division's operational journals, of which Powell was the custodian. The inspector then asked Powell to produce the journals for March 1968. Powell started to explain that he had not been with the division at that time. "Just get the journal," the IG man snapped, "and go through that month's entries. Let me know if you find an unusual number of enemy killed on any day."

Powell flipped through the records and came upon an entry from March 16, 1968. The journal noted that a unit of the division had reported a body count of 128 enemy dead on the Batangan Peninsula. "In this grinding, grim, but usually unspectacular warfare," Powell writes, "that was a high number." The investigator requested that Powell read the number into the tape recorder he had brought, and that was essentially the end of the interview. "He left," Powell recalls, "leaving me as mystified as to his purpose as when he arrived."

It would not be until two years later (according to the orginal version of Powell's book) or six months later (according to the paperbck version of the book) that Powell figured out that the IG official had been probing what was then a secret, the My Lai massacre. Not until the fall of 1969 did the world learned that on March 16, 1968, troops from the Americal Division, under the command of Lieut. William Calley, killed scores of men, women and children in that hamlet. "Subsequent investigation revealed that Calley and his men killed 347 people," Powell writes. "The 128 enemy 'kills' I had found in the journal formed part of the total."

Though he does not say so expressly, Powell leaves the impression that the IG investigation, using information provided by Powell, uncovered the massacre, for which Calley was later court-martialed. That is not accurate.

The transcript of the tape-recorded interview between the IG man--Lieut. Col. William Sheehan--and Powell tells a different story. During that session--which actually happened on May 23, 1969--the IG investigator did request that Powell take out the division's operations journals covering the first three weeks of March. (The IG inquiry had been triggered by letters written to the Pentagon, the White House and twenty-four members of Congress by Ron Ridenhour, a former serviceman who had learned about the mass murders.) Sheehan examined the records. Then he asked Powell to say for the record what activity had transpired in "grid square BS 7178" in this period. "The most significant of these occurred on 16, March, 1968," Powell replied, "beginning at 0740 when C Company, 1st of the 20th, then under Task Force Barker, and the 11th Infantry Brigade, conducted a combat assault into a hot LZ [landing zone]." He noted that C Company, after arriving in the landing zone, killed one Vietcong. About fifteen minutes later, the same company, backed up by helicopter gunships, killed three VC. In the following hour, the gunships killed three more VC, while C Company "located documents and equipment" and killed fourteen Vietcong. "There is no indication of the nature of the action which caused these fourteen VC KIA," Powell said. Later that morning, C Company, according to the journal, captured a shortwave radio and detained twenty-three VC suspects for questioning, while two other companies that were also part of Task Force Barker were active in the same area without registering any enemy kills [...]

There had been attempts at cover-up. Prior to Ridenhour's letter, the Army promoted the story that C Company had killed 128 VC and captured three weapons in the March 16 action. (Note the 128 figure--which Powell, in his memoirs, uses in describing the number of enemy kills he supposedly found in the journals. In his book, he is repeating the cover story, not recalling what was actually in the journal.) And information pertaining to My Lai disappeared from the Americal Division's files. A military review panel--convened after the Hersh stories to determine why the initial investigations did not uncover the truth of My Lai--found that senior officers of the Americal Division had destroyed evidence to protect their comrades. Powell keeps that out of his account.

Powell has never been implicated in any of the wrongdoing involving My Lai. No evidence ties him to the attempted cover-up. But he was part of an institution (and a division) that tried hard to keep the story of My Lai hidden--a point unacknowledged in his autobiography. Moreover, several months before he was interviewed by Sheehan, Powell was ordered to look into allegations made by another former GI that US troops had "without provocation or justification" killed civilians. (These charges did not mention My Lai specifically.) Powell mounted a most cursory examination. He did not ask the accuser for more specific information. He interviewed a few officers and reported to his superiors that there was nothing to the allegations [see "Questions for Powell," The Nation, January 8/15, 2001]. This exercise is not mentioned in his memoirs.

Concurrent with this, Powell brushed off a soldier's complaint about routine brutality of civilians by US forces in Vietnam. He was part of a military establishment that sought to cover up crimes like My Lai. So this dodging Maddow's questions on principals meetings and torture comes very naturally to him, I would imagine.

Of course, today Colin Powell is a very serious person, so he should never be questioned on such uncouth subjects. But recognize that this shame cannot just be wished away. Just today a federal judge ruled that subjects held at Bagram AFB in Afghanistan can challenge their detention in US courts. The torture regime will have ramifications for years, and the establishment, as represented here by Colin Powell, will continue to deny the problem, allowing it to fester.

RIP Enemy Combatant

I'm not thrilled with everything the President is doing from a civil liberties standpoint. In many respects he is continuing policies put in place by George W. Bush, or at least shielded those policies from scrutiny. But I'd give a thumbs up to this unwinding of the most extreme actions undertaken by the executive over the past eight years.

In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government's authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President's authority as Commander-in-Chief independent of Congress's specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant."

The Department also submitted a declaration by Attorney General Eric Holder stating that, under executive orders issued by President Obama, the government is undertaking an interagency review of detention policy for individuals captured in armed conflicts or counterterrorism operations as well as a review of the status of each detainee held at Guantanamo. The outcome of those reviews may lead to further refinements of the government's position as it develops a comprehensive policy.

"As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law," said Attorney General Holder. "The change we've made today meets each of those standards and will make our nation stronger."

The government is still basing its authority to hold detainees at Guantanamo on the 2001 AUMF (which should be repealed or at least clarified), but they do appear to be following the international laws of war, and this filing is but a way-station to the eventual closing of Guantanamo. Of course, there's still the question of Bagram, and about how we're going to deal with those who tortured in our name. But we are seeing a gradual shift. I'd like it to be more acute, but at this point, I'll take it.

...I have to admit to have grossly misread the initial information on this story. I will revisit it tomorrow. This is not change.

Don't Make Bagram Guantanamo II

Today the Justice Department announced that Ali al-Marri, the last enemy combatant held inside the United States, would be charged and tried in a federal court in Illinois. This is a major victory for the rule of law. Instead of being held indefinitely without due process or habeas corpus, al-Marri will be given charges and prosecuted in an American courtroom, not a military commission. All Guantanamo prisoners deserve the same courtesy - either be tried, or released. In addition, we will probably get a ruling on al-Marri's detention anyway, which would be positive to set the precedent:

The Supreme Court already agreed to consider a challenge to the constitutionality of al-Marri’s detention, and the ACLU is asking the Court still to consider that case. According to Al-Marri’s attorney, the ACLU’s Jonathan Hafetz, “it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this will never happen again.”

There is another group of detainees that should be extended the rights of being tried or released - those at Bagram Air Force Base in Afghanistan who were transferred there from around the world. The expansion of Bagram has raised fears that Obama may use it the way George Bush used Guantanamo.

Now, human rights groups say they are becoming increasingly concerned that the use of extra-judicial methods in Afghanistan could be extended rather than curtailed under the new U.S. administration. The air base is about to undergo a $60 million expansion that will double its size, meaning it can house five times as many prisoners as remain at Guantanamo.

Apart from staff at the International Red Cross, human rights groups and journalists have been barred from Bagram, where former prisoners say they were tortured by being shackled to the ceiling of isolation cells and deprived of sleep.

The base became notorious when two Afghan inmates died after the use of such techniques in 2002, and although treatment and conditions have been improved since then, the Red Cross issued a formal complaint to the U.S. government in 2007 about harsh treatment of some prisoners held in isolation for months.

While the majority of the estimated 600 prisoners are believed to be Afghan, an unknown number -- perhaps several dozen -- have been picked up from other countries.

Hilzoy had a great piece about this, showing the genuinely conflicting issues at play here. But one thing seems fairly obvious - if we are going to restore our moral authority around the world, we need to have the same standard for those detainees at Bagram not detained in the course of military conflict as we ought to have for those at Guantanamo. That's not just true of the Muslim world, where support for Al Qaeda itself is mixed, but strongly in favor of their efforts to drive the United States off their land, through force if necessary. It's also true of our allies in Europe, who will not work with us on key issues if we just rebuild Guantanamo at Bagram.

In one of his first acts in office, President Barack Obama ordered the closure within one year of Guantanamo Bay, where about 245 people are still detained and which has been widely viewed as a stain on the U.S. human rights record.

But Obama has yet to decide what to do about the jail at Bagram, where more than 600 prisoners are held, or whether to continue work on a $60 million prison complex there.

Washington wants the EU to help it close Guantanamo by agreeing to accept discharged prisoners who cannot be returned to their own countries for fear of torture.

But a confidential EU policy paper, obtained by Reuters, said such help would depend on Washington's overall anti-terrorism policies, including assurances that Bagram or other camps would not become new Guantanamos.

"I would find it very surprising, if the (U.S.) policy remained the same while Guantanamo was closed, to see the EU mobilize itself," EU anti-terrorism coordinator Gilles de Kerchove told Reuters.

The EU policy paper said: "It would not be in conformity with EU fundamental rights policies to simply transfer Guantanamo elsewhere (i.e. in Bagram) without solving the underlying question of the detention of terror suspects for indefinite time and without trial."

This is going to undermine our efforts at global cooperation if it is allowed to fester. Obama's honeymoon around the world will quickly come to an end. We will have lost a great opportunity to push the reset button.

Make It Stop

I'm getting a little tired of seeing headlines with "sticks with the Bush position" in them.

The Obama administration on Friday told a federal judge it would not deviate from the Bush administration's position that detainees held at a U.S. air base in Afghanistan have no right to sue in U.S. courts.

In one of his first acts in office, President Barack Obama ordered the closure within one year of the Guantanamo Bay detention center, which has been widely criticized by rights groups and foreign governments. About 245 people are currently held at Guantanamo, according to the Pentagon.

However, Obama has not yet decided what to do about the makeshift prison at the U.S. military base in Bagram, where the U.S. government is holding more than 600 prisoners, or whether to continue work on a $60 million prison complex there.
In late January, Obama directed a task force to study the government's overall detainee policy and report back to him in six months.

But the new administration faced a February 20 deadline to tell U.S. District Court Judge John Bates whether it would "refine" the Bush administration's position on four men being held at Bagram who have filed suit against their detention.

In a brief filing with the court on Friday, the Justice Department said it would stick to the previous government's position, which argued the four men -- who have been detained at Bagram for over six years -- had no right to challenge their detention in a U.S. court.

There is little to recommend here. In a substantive sense, Bagram and Guantanamo are hardly different. Many of the detainees have been in both camps. There are just as many stories of human rights abuses at Bagram (including the homicide of Dilawar, the taxi driver whose experience is chronicled in last year's Oscar-winning documentary Taxi To The Dark Side). To separate the two at all is really dastardly. Just because Gitmo is more well-known doesn't make the sins of Bagram acceptable.

And here's another example of the Obama Administration adopting a Bush-era stance on an issue of executive power:

Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush's eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama's Justice Department is continuing the Bush administration's bid to get the lawsuits dismissed.

Recently, the Bush White House said it had located 14 million e-mails that were misplaced and that the White House had restored hundreds of thousands of other e-mails from computer backup tapes.

"The new administration seems no more eager than the last" to deal with the issue, said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, the other group that sued the EOP.

The Executive Office of the President includes the president's immediate staff and many White House offices and agencies.

Tom Blanton, director of the National Security Archive, noted that President Barack Obama on his first full day in office called for greater transparency in government.

The Justice Department "apparently never got the message" from Obama, Blanton said.

I'm sure that some of this is because the Administration doesn't want to get ahead of itself and make the determinations on these cases on their terms, and there are also zombie lawyers arguing these cases, holdovers from the Bush Administration, and we are very early in the new people getting to the job and asserting their will. But we have the previous regime committing very serious crimes and the new team not wanting to deal with them, frankly, so they're trying to dismiss lawsuits or keep practices in place to bury the evidence. It doesn't work that way, however. Eventually, the truth comes out, and by implicating themselves deeper into this mess, they cannot claim to be turning the page on anything or deserving of a new level of respect around the world or at home.

There's another opportunity on this coming Wednesday. A federal judge is setting that deadline for the Administration to weigh in on the subpoenas of Harriet Miers and Josh Bolten in the US Attorneys scandal. Will they back George Bush's claim of executive privilege covering these two aides and preventing them from testimony before Congress, or will they reject it? There are implications for Karl Rove's testimony as well. The new White House counsel is urging Rove's lawyers to work out a deal with Congress, probably so he doesn't have to weigh in himself. This could be good or bad, and since the White House's motion for continuance was denied, we'll know more by Wednesday. I'm tired of being disappointed on these issues.

More Than Guantanamo

Putting aside the words of torture-loving sadists like John Yoo for a moment, there are a couple flaws in President Obama's executive order, particularly as it relates to Guantanamo. As Rachel Maddow picked up on almost immediately, nowhere in the order was there any call to close Bagram Air Force Base in Afghanistan, or to deal with the prisoners there. The US military is holding over twice as many prisoners at Bagram than they currently are at Guantanamo, with practically no access to lawyers, worse conditions, etc. No journalists have been allowed inside, and no human rights group. It needs a reckoning, too.

President Obama must now decide whether and how to continue holding the men at Bagram, most of them suspected of being Taliban fighters. Under the laws of war, they are being held indefinitely and without charge. He must also determine whether to go forward with the construction of a $60 million prison complex at Bagram that, while offering better conditions for the detainees, would also signal a longer-term commitment to the American detention mission.

Mr. Obama tried last week to buy some time in addressing the challenges Bagram poses even as he ordered Guantánamo closed. By a separate executive order, Mr. Obama directed a task force led by the attorney general and the defense secretary to study the government’s overall policy on detainees and to report to him in six months.

But human rights advocates and former government officials say that several factors — including expanding combat operations against the Taliban, the scheduled opening of the new prison at Bagram in the fall and a recent federal court order — will probably force the administration to deal with the vexing choices much sooner.

The answer is very simple - to apply the laws of war and the Geneva conventions, and to try or release anyone at Bagram not connected to the ongoing war in Afghanistan. The detainees there are at least more plausibly "on the battlefield" and considered POWs, and yet, on wonders if the population has increased at Bagram because Gitmo is the more high-profile camp. Barely anyone at Guantanamo had a connection to terror, and we should not assume that Bagram is any different. In fact, there is some evidence to that effect.

An untold portion of the 600 detainees at Bagram Airfield in Afghanistan were captured outside the country while engaged in peaceful activities, lawyers and court documents say, and imprisoned alongside Afghan warriors. The U.S. government has argued that battlefield rules put the prisoners beyond the reach of civilian justice, even though they weren't captured in the Afghan war zone.

A lawsuit by four Bagram detainees has revealed striking similarities between the prison in Afghanistan and the Guantanamo Bay facility. To determine the full measure of that resemblance, District Court Judge John D. Bates instructed government lawyers to turn over the total number of captives nabbed abroad. That crucial number was redacted from public court documents (PDF) filed in the case. Recently, Bates has turned to the Obama administration, which recently put the Gitmo military commissions on hold, for guidance.

The Bush administration argued that the whole world is a battlefield after Sept. 11 and chose to treat counterterrorism efforts as military actions, rather than law enforcement. Those strategies led to indefinite detentions of terrorism suspects at Guantanamo Bay without due process. While battlefield military detentions are traditionally beyond the scope of civilian court review, the government has sought to extend the global battlefield construct (PDF) to detainees who were brought to Bagram from peaceful cities.

Obama and his national security team need to sort this out. The consequences of this finding becoming more widespread, the revelation that we're using Bagram as an off-the-books Guantanamo, would be grave for public diplomacy and our relationship with the world. They have to figure out who's at Bagram and deal with them in accordance with Constitutional principles and international conventions.

RELATED: Good on Bob Gates for pushing back on the nonsense about released Gitmo detainees returning to kill us all in our beds. Now, we need a similar kind of candor about Bagram.

The Seven-Year Itch

June 2008 absolutely seems like a good time to start going after Osama bin Laden.

President George W Bush has enlisted British special forces in a final attempt to capture Osama Bin Laden before he leaves the White House.

Defence and intelligence sources in Washington and London confirmed that a renewed hunt was on for the leader of the September 11 attacks. “If he [Bush] can say he has killed Saddam Hussein and captured Bin Laden, he can claim to have left the world a safer place,” said a US intelligence source.

This could have been something to do when, I don't know, he was pinned down in caves in the Tora Bora Mountains while W. had visions of shock and awe in Iraq dancing in his head. To do it now as purely a legacy maneuver seems, how can I say this, completely self-serving and weak.

Additionally, this becomes easier when you don't spend years torturing and beating innocent Afghanis and Pakistanis when you could have been seeking the actual target.

American soldiers herded the detainees into holding pens of razor-sharp concertina wire, the kind that's used to corral livestock.

The guards kicked, kneed and punched many of the men until they collapsed in pain. U.S. troops shackled and dragged other detainees to small isolation rooms, then hung them by their wrists from chains dangling from the wire mesh ceiling.

Former guards and detainees whom McClatchy interviewed said Bagram was a center of systematic brutality for at least 20 months, starting in late 2001. Yet the soldiers responsible have escaped serious punishment [...]

Nazar Chaman Gul, an Afghan who was held at Bagram for more than three months in 2003, said he was beaten about every five days. American soldiers would walk into the pen where he slept on the floor and ram their combat boots into his back and stomach, Gul said. "Two or three of them would come in suddenly, tie my hands and beat me," he said.

When the kicking started, Gul said, he'd cry out, "I am not a terrorist," then beg God for mercy. Mercy was slow in coming. He was shipped to Guantanamo around the late summer of 2003 and imprisoned there for more than three years.

According to Afghan officials and a review of his case, Gul wasn't a member of al Qaida or of the extremist Taliban regime that ran Afghanistan from 1996 to 2001. At the time he was detained, he was working as a fuel depot guard for the U.S.-backed Afghan government.

This would tend to make the type of people you'd rely on in a mission to capture or kill bin Laden a tad more wary of you.

While it may be true that Al Qaeda as an organization is wearing out its welcome in the world, the best way to hasten that decline is to not torture innocent Muslim and occupy Muslim countries while letting the man that moderate Muslims view responsible for murdering thousands of Muslims in his own right to roam free. Our terror strategy is a failure, but fortunately so is Al Qaeda's. Still, Bush appears to be doing all he can to keep it relevant.