A military judge on Tuesday postponed next week's trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.
Army Col. Patrick Parrish announced the delay at a pre-trial hearing Tuesday morning at the war court, which quit for the day before President Barack Obama took office. Hearings at both commissions courtrooms were scheduled to resume Wednesday morning [...]
Khadr, captured at 15, is charged with murder as a war crime for allegedly throwing a grenade in July 2002 in a firefight in Afghanistan that killed Sgt 1st Class Christopher Speer, 28, of Albuquerque, N.M.
Human rights groups had appealed to Obama even before he took office to halt the Jan. 26 trial.
Khadr, now 22, has grown into burly, bearded 6-foot-2 adulthood behind the razor wire of Guantánamo Bay, Cuba, to the consternation of children's rights advocates, who say he should have been treated as a ''child soldier'' -- not interrogated for years as a terror suspect.
In fact, the prosecutors of the ongoing trials want to halt them as they await Obama's new formulation on military commissions, calling for an indefinite continuance. Defense lawyers actually oppose this on the grounds that they fear a preservation of the flawed system. But it appears that Obama's advisors want to flush the system and try terror suspects in federal courts rather than the military commissions.
The president-elect's aides are still formulating their plan for shutting the lockup, which has come to symbolize indefinite detention without charges. Yet there appears to be agreement among many experts, including some Obama aides and outside advisers, on key points, such as turning over terror suspects to federal courts and ending the use of military commissions.
"I do have some predispositions on this subject which I think are similar to the President-elect's. I think it is preferable that we proceed in . . . civilian courts," said Jeh Johnson, Obama's choice as the Pentagon's top lawyer, at his Senate confirmation hearing on Thursday.
This is why I'm finding the leak to Bob Woodward of Susan Crawford's position on the torture of Mohammed al-Qahtani so disturbing. Crawford, a lifelong Republican, made the very specific point that she stopped Qahtani's military commission because he was tortured. By extension, he could never receive a fair trial in the US for this reason. And yet Crawford was insistent that Qahtani was one of the "worst of the worst" and that he should not be released. This is an argument for maintaining Gitmo, and I'm not the only one who thinks it's a trap.
GUDE: It does look very much as if the Obama is going to favor prosecutions in US courts, and any question about the psychological competence of the defendants could call into question those prosecutions. When you look at it in the bigger picture –- when you combine this statement by Crawford, her first ever interview, just days before the end of the Bush administration -– when you combine that with the story out of the Pentagon that they have upped the number of detainees that they claim have returned to the battlefield from 30 to 61, more than 10 percent of the detainees who have been released from Guantanamo since it opened in 2002, this looks like a coordinated effort to tie the hands of the Obama team, to make it much more difficult for the Obama administration to pursue its own policies on Guantanamo, and perhaps even down the road to undermine the Obama administration as it pursues its activities to close Guantanamo, pursue trials in US courts, and release some detainees either back to their home countries or transfer them to other countries for further incarceration.
DUSS: So, in your view, is this Dick Cheney, in his last moments in power, trying to lock in his methods, and his policies?
GUDE: You’ve seen in the numerous exit interviews that both he [Cheney] and Bush have been giving, they have been talking about this very issue about how they view that Guantanamo is going to be very hard. It’s going to be very hard to close, we’ve done what we could, and the reason why we’ve done what we could is because this is such a hard issue. And Susan Crawford used to work for Dick Cheney and a lot of people are saying, “you see, even Susan Crawford, who used to work for Dick Cheney, has seen the light and she’s admitting to torture.” Well, I choose to view it in a different way. And perhaps I have too negative a view of these things, but she’s still doing Dick Cheney’s work in my view. She is making it much more difficult now. This revelation makes it much more difficult to pursue the policy that the Obama team would like to pursue.
It's not just Qahtani, who is probably incapacitated, but Crawford is basically alluding to others who may be capable enough, but the torture of whom would allow them to be acquitted and released. And you know that the right will be calling Obama a terrorist sympathizer if one of these guys were set free, through no fault of his own. The Crawford interview did change everything, but maybe not in the way a lot of people think. She may have extended the lifespan of Guantanamo by months, years, or even indefinitely.
Digby mentioned yesterday the video of Omar Khadr, the first we have of an interrogation at Guantanamo, sobbing uncontrollably as he attempts to tell his story to Canadian investigators. The kid is 16 and he's clearly on the edge of a nervous breakdown.
This is only the most recent in what is now a mountain of information on torture that has slowly seeped out over the past year. Just yesterday Osama bin Laden's driver Ahmed Hamdan discussed his coercive treatment in a Guantanamo military commission. And Jane Mayer's much-anticipated book on torture, rendition, and the policies of the Bush Administration has already revealed enough information to fill several stories, including the news that the CIA knew that significant numbers of prisoners captured "on the battlefield" were innocent of any charges, that the Red Cross had secret knowledge of torture that they wrote up in a classified report to the CIA, which incriminated top Administration officials in war crimes, and much more. Mayer's book, ably reviewed by Tim Rutten, is an account of the battle inside the White House as much as the battle around the world, with the stories of heroes and patriots who tried to preserve American ideals by resisting efforts to rewrite the rules of interrogation and the treatment of prisoners, and their opponents, mostly in the Vice President's office, who stymied them. Anyone who questioned the program, like the Inspector General of the CIA John Helgerson, who in 2004 wrote a very serious report alleging war crimes, mistreatment and homicide, and who received personal visits from Dick Cheney thereafter, was shut down.
...the White House was relying on opinions from John Yoo and other authoritarian ideologues in the Office of Legal Counsel who secretly told the president and vice president that they enjoyed inherent powers to overturn any law restraining surveillance, searches and seizures within the United States. As one such memo said, "The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
Mayer does a superb job of describing how the trauma of 9/11 all but unhinged Bush and Cheney and predisposed the chief executive to embrace the ready-made unitary executive theory of presidential power, which the vice president and his chief aide, David Addington, had come to Washington prepared to promote. In the opinion of the late historian Arthur Schlesinger, "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history."
Those who have been paying attention know the consequences of this. Much of the torture and abuse was subjected to people who had no intelligence value and were never credibly charged with any crime. The methods were based on decades-old survival techniques produced by the Navy to resist torture, and a manual from the Chinese that used torture to elicit false confessions. They used psychologists to develop a program of "learned helplessness", reverse-engineered from the SERE techniques. In the end, not one terror suspect has been convicted of anything since 9/11. The "intelligence" gained from the likes of Abu Zubaydah and Khalid Sheikh Mohammed was of the wild goose chase variety. Evidence of torture inflamed the Islamic world and became a recruitment poster for Al Qaeda. And on and on. There's more from Dan Froomkin, Andrew Bacevich, Frank Rich and Daniel Larison.
And any effort to stop this, even in the face of overwhelming evidence of its failure, was squelched, in a bipartisan fashion, because of politicians who wanted to cover their tracks. As Glenn Greenwald puts it:
This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice [...]
If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.
Yes, because the torture program itself, in a sense, was a method to cover up an earlier crime. In the months before 9/11 the White House was completely disinterested in terrorism, dismissing the concerns of the intelligence community and neglecting to address the threat. After 9/11, they swung completely in the other direction, and the programs of torture and indefinite detention and surveillance, which were largely off the shelf from long into, were put into action to prove to the nation that something was being done, that there was a manner of payback being extracted.
After interviewing hundreds of sources in and around the Bush White House, I think it is clear that many of the legal steps taken by the so-called “War Council” were less a “New Paradigm,” as Alberto Gonzales dubbed it, than an old political wish list, consisting of grievances that Cheney and his legal adviser, David Addington, had been compiling for decades. Cheney in particular had been chafing at the post-Watergate reforms, and had longed to restore the executive branch powers Nixon had assumed, constituting what historian Arthur Schlesinger Jr. called “the Imperial Presidency.”
Before September 11, 2001, these extreme political positions would not have stood a change of being instituted—they would never have survived democratic scrutiny. But by September 12, 2001, President Bush and Vice President Cheney were extraordinarily empowered. Political opposition evaporated as critics feared being labeled anti-patriotic or worse. It’s a familiar dynamic in American history—not unlike the shameful abridgement of civil liberties represented by FDR’s internment of Americans of Japanese ancestry. One of the strongest quotes in the book, I think, comes from Philip Zelikow, the former executive director of the 9/11 Commission, former counselor to Secretary of State Condi Rice, and a historian who teaches at the University of Virginia. He suggests in time that America’s descent into torture will be viewed like the internment of the Japanese, because they happened for similar reasons. As he puts it, “Fear and anxiety were exploited by zealots and fools.”
In an interview with "Fresh Air," Jane Mayer talked about how Bush and Cheney were receiving raw, unfilitered intelligence after 9/11, lurid tales of nuclear attacks on the country and massive terrorist bombings, most of it bullshit, but so vivid as to justify, in their minds, whatever depravity they ended up putting into practice. One claim in the book is that Cheney thought he had taken a lethal dose of anthrax, which contributed to his insistence on tough tactics. Incidentally, it was based entirely on a false alarm in the White House Situation Room. That didn't stop Cheney's paranoia. He was completely consumed with this stuff, and I'm sure he believes what he did was necessary to protect the country.
But that's not a legal justification. And no matter how many times John Yoo and David Addington try to rewrite the history of the Constitution, what has been done violates federal law, international treaties and war crimes statutes. In a just world, as Jerrold Nadler said yesterday, Bush and Cheney would be impeached. But this goes well beyond removal from office. This is about indictment for murder and war crimes, by definition. In case you were wondering, however, here is the official Village pronouncement about what we should do with the fact that our leaders, in a complete breakdown of the rule of law, have tortured, detained without charges, and murdered:
Dark deeds have been conducted in the name of the United States government in recent years: the gruesome, late-night circus at Abu Ghraib, the beating to death of captives in Afghanistan, and the officially sanctioned waterboarding and brutalization of high-value Qaeda prisoners. Now demands are growing for senior administration officials to be held accountable and punished. Congressional liberals, human-rights groups and other activists are urging a criminal investigation into high-level “war crimes,” including the Bush administration’s approval of interrogation methods considered by many to be torture.
It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers.
That's right. Just shut it down. Those mean old hippies are just too worked up about all of this stuff. We need to just move on and heal the nation's partisan wounds and forget about all this "accountability" nonsense.
As Greenwald said, this is what happens to a country when there is a removal of the rule of law, when the powerful can absolve themselves of blame and the media courtiers serve to protect them. There is no question that top Democrats were briefed about this program, if not the full extent of it. They absolutely voted to immunize any Administration official from prosecution in the Military Commissions Act (funny how "immunity" keeps coming up as a theme of Bush-led legislative initiatives). They want to pardon themselves by vowing never to bring up the word "indictment" in polite company, so leaders of all political stripes can whistle and laugh at Washington cocktail parties at the end of empire.
This "Truth Commission" thing is taking hold throughout the Village, and I understand the impulse to an extent, but it's not like the parties who would be pardoned have even acknowledged any wrongdoing. They're still asserting unitary executive powers, and they're still winning battles in the courts, so why would you instinctively want to pardon people who believe they've done nothing wrong?
President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.
The same court ruled that this prisoner has the right to an additional habeas hearing, and additional habeas hearings have been ordered by other judges. But read that above sentence. Indefinite military detentions of civilians captured inside the United States. Why would anyone submit to a Truth Commission when they're winning.
But the real reason I can't abide by a Truth Commission any more, not after the slow drip of illegalities over the last few years, is because of this aspect of the Village mindset. Bradrocket says it best:
"A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies. It would spur those who know the most to take the Fifth. Any prosecutions would also touch off years of partisan warfare."
And this, my friends, is the absolute nightmare of the Village Mindset: years of partisan warfare. Why do evil people like George W. Bush and Dick Cheney feel they can simply break the law with reckless abandon? Because they know that modern American political culture simply does not believe in accountability for its political class. They know that in the end, they’re part of the same Villager club of Special People who are too powerful and too privileged to ever face any consequences for their actions. Prosecute government officials for state-sanctioned torture?? How uncouth!
And that's the racket in Washington. Accountability is just a word people throw around.
I'm sure the military judge, in close consultation with the Defense Department, threw his Khadr dart at the calendar to come up with this date:
Canadian Omar Khadr was told by a military judge Thursday at the U.S. naval base at Guantanamo Bay, Cuba, that his trial on war crimes charges will begin on Oct. 8.
The judge, Col. Patrick Parrish, said the date for trial by the controversial military commissions process can be changed for legal reasons if necessary.
Khadr, 21, faces up to life in prison if convicted on charges of killing a U.S. army medic with a grenade during a firefight in Afghanistan in 2002. He was 15 years old at the time.
Parrish was presiding over Khadr's pre-trial hearing for the first time.
The Toronto-born detainee's military lawyer, Lt.-Cmdr. William Kuebler, has accused the Pentagon of making last month's surprise change in judges to speed the process of getting his client to trial.
The last judge, Col. Peter Brownback, who had been on the case from the outset, was more concerned with following legal procedure, and leery of many aspects of the prosecution case, Kuebler has alleged.
Kuebler said Parrish has been described in an internet posting as "rocket docket" and has been parachuted in to get his client to trial before President George W. Bush leaves the White House early next year, something his predecessor, Brownback, was in no hurry to do.
Could somebody get me the significance of October 8, please? I mean other than the fact that it's a few weeks before the Presidential election. I'm not SO cynical to suggest that a high-profile trial of a Terrorist (who was the ripe old age of FIFTEEN at the time of his arrest) would fall in that month on purpose.
It's glaringly obvious that the Bush Administration is trying to orchestrate these show trials at Guantanamo in the middle of the Presidential election, in the belief that any reminder of the attacks on 9-11 is automatically good for Republicans. They're trying to shift around the date to a mere ten days after John McCain accepts the Republican nomination. The prosecutors are openly dismissive of criticism over using evidence gained using torture. They're firing judges who dare to actually allow defense lawyers to see the evidence against them and act like these kangaroo courts are actually trials, and then when pressed about it they get all defensive about it:
Chief judge Marine Col. Ralph Kohlmann said he was making the rare public statement because last week's dismissal of Col. Peter Brownback raised questions about the independence of military officers presiding over tribunals at the Guantanamo Bay Navy base in Cuba.
"Any suggestion that my detailing of another military judge was driven by or prompted by any decisions or rulings made by Colonel Brownback is incorrect," Kohlmann said in the statement e-mailed to reporters.
Kohlmann said the Army decided by February to let Brownback's active-duty service orders expire.
But that struck many observers as odd, since Brownback had offered to remain on the case as long as needed and had received three annual extensions during the past few years.
This really is so obvious. Bush only has a few cards left to play, and these show trials are one of them. We're going to put these men who have been held without charges for up to 7 years on "trial" and prove how concerned with the rule of law we are. Only Omar Khadr, the defendant in the case where the judge was dismissed, is seen as a good kid by his minders in the US military.
Two new reports by the Canadian government have revealed new details about Omar Khadr, the Canadian citizen who has spent a quarter of his life held at Guantanamo. The US soldiers holding Khadr believe he is a “good kid” who is a “likeable, funny and intelligent young man.” The US soldiers holding Khadr believe he risks becoming a radical if he continues to be held at Guantanamo. Khadr was fifteen when he was captured in Afghanistan.
Isn't that the catch-22? We capture the innocent and turn them into radicals, and then we can't let them go because they've been so radicalized.
This little trick might just work, but when you see a kid captured at the age of 15, someone that young, who wasn't a threat to the United States until he reached the Guantanamo prison camp, paraded around like he's Eichmann, I think there'll be some disconnect.
At first glance, I thought this story, about the dismissal of charges against Omar Khadr in a military court, was siply on a technicality, due to the fact that he was labeled an "enemy combatant" and not an "unlawful enemy combatant." Which is amusing, considering the Bush Administration went to great lengths to put these military tribunals together, only to see them overturned by word choice (yay, look how safe they're keeping us! Man, competence and this White House don't mix, do they?) But apparently there's a bit more to it, at least according to Khadr's lawyer:
Sullivan said the dismissal of Khadr case has "huge" impact because none of the detainees held at this isolated military base in southeast Cuba has been found to be an "unlawful" enemy combatant.
"It is not just a technicality — it's the latest demonstration that this newest system just does not work," Sullivan told journalists. "It is a system of justice that does not comport with American values."
I'm not so sure what kind of a win this is; after all, what it means is that Khadr can't be tried, but he's going right back to his cell at Gitmo and it's not like he's being released. So we'll have to see how it plays out.
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