SCOTUS Throws A Life Preserver To The Rule Of Law

I gotta say, I didn't expect this to happen:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court's liberal justices in the majority.

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

If it weren't for Anthony Kennedy or any of the more liberal justices, of course, that would no longer be true. Which is yet another reason why this election is so vital. Check out this quote from the Chief Justice. It reads like a comment at RedState:

In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

This action that has now been ruled invalid, the decision that Guantanamo detainees had no legal rights under the Constitution or Geneva, was the original sin that led to all the other abuses. And it won't surprise anyone to learn that it was "the stupidest fucking guy on the planet" Doug Feith's idea. In his book Torture Team: Rumsfeld's Memo and the Betrayal of American Values, which is excerpted in this much-discussed Vanity Fair article, Philippe Sands talks to Feith, who's proud of his achievement of getting the Administration to agree that detainees had no rights:

He was keen to talk about his role as the architect of President Bush's decision of February 7, 2002. He didn't buy the argument that the decision had the effect of casting the detainees into a great legal black hole. On the contrary, the President's decision was actually a strike for the Geneva Conventions and for international law. "This was something I played a major role in," he said with pride [...]

In late January 2002 Feith and (Chairman of the Joint Chiefs Richard) Myers went to meet Rumsfeld to talk about Geneva. Before they got to Rumsfeld's office, Myers turned to him. With fire in his eyes he said: "We have to support the Geneva Conventions... if Rumsfeld doesn't go along with this, I'm going to contradict them in front of the President." Feith was amazed. It was an unusually tough statement, and the reference to the Secretary as "Rumsfeld" was uncharacteristic. As they approached Rumsfeld's office he was at the door, not wanting to let them into the room as he had other matters to attend to. Myers was grilled by Rumsfeld, who asked questions but didn't adopt any position. Rumsfeld was "more of a lawyer than most lawyers when it comes to precision and question," a stickler for the law who constantly invoked the Constitution and statutes, Feith reported.

As Rumsfeld fired his bullets at Myers, Feith described how he jumped protectively in front of Myers. He paused and looked me straight in the eye. "I gave a little speech - I remember - I don't often remember what I said in meetings - but this I remembered. This was an interesting moment." This was how he put it.

"There is no country in the world that has a larger interest in promoting the respect for the Geneva Conventions as law than the United States, and there is no institution in the US government that has a stronger interest than the Prentagon." And then I said something else that was kind of interesting to them. "Obeying the Geneva Conventions is not optional. The U.S. Constitution says there are two things that are the supreme law of the land - statutes and treaties." He said, "Yeah." And I said, "The Geneva Conventions are a treaty in force. It is as much part of the supreme law of the United States as a statute." [...]

I was impressed, but how had they gone from that discussion to the decision that none of the detainees had any rights under the rules reflected in Geneva? Feith seemed surprised by my question and went on to explain [...] In his view, Geneva didn't apply to Al Qaeda fighters, because they weren't part of a state and so couldn't claim rights under a treaty that was only binding on states. Geneva did apply to the Taliban, but by Geneva's own terms Taliban fighters weren't entitled to POW status because they hadn't worn uniforms or insignia [...] He referred again to the incentive system that was built into the Geneva Conventions, providing the greatest protection to non-combatants and the least protection to "fighters who don't obey the rules." "If we promiscuously hand out POW status to fighters who don't obey the rules," Feith offered, "you are undermining the incentive system that was wisely built into the Geneva Conventions." This was at least arguable, I thought. But what should have been left was the safety net provided by Common Article 3, including the prohibition on abusive interrogation. But that too went: none of the detainees could rely on Common Article 3 since its provision only applied to "armed conflicts onot of an international charter."

This was the legal argument that the SCOTUS rejected today. It's simple to do, since Common Article 3 was backed up by customary law, every judgment of international courts and tribunals, and the official commentary to Geneva. Feith spun this as a protection of Geneva, when it in fact was a destruction.

Because Feith's argument rested on defending Geneva, the senior officers were confused with the ruling, and more so the soliders carrying out the dictates. As Sands says in the book, "with confusion comes uncertainty, and with uncertainty comes a greater likelihood of abuse." And this original sin created intentional confusion. If the detainees had no legal rights, there was no restriction on doing whatever necessary in interrogation to extract intelligence.

Sands, by the way, appeared on Capitol Hill this week to discuss his findings in the book, but Republicans attempted to use a rare objection to unanimous consent to force the Senate into recess and shut down the hearing. They didn't even want these words to come out. Unfortunately for them, they couldn't shut down the court.

The Watchers

Let's be clear about the acts of torture planned and authorized out of the White House that The New York Times has editorialized about. Some of the details were laid out in the 2002 Haynes memo signed by Donald Rumsfeld.

These techniques were new to the military. Category I comprised two techniques, yelling and deception. Category II included 12 techniques, aiming at humiliation and sensory deprivation, including stress positions, such as standing for a maximum of four hours; isolation; deprivation of light and sound; hooding; removal of religious and all other comfort items; removal of clothing; forced grooming, such as shaving of facial hair; and the use of individual phobias, such as fear of dogs, to induce stress.

Finally came Category III. These methods were to be used for only a very small percentage of detainees - the most uncooperative (said to be fewer than 3%) and exceptionally resistant individuals - and required approval by the commanding general at Guantánamo. In this category were four techniques: the use of "mild, non-injurious physical contact", such as grabbing, poking and light pushing; the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; exposure to cold weather or water; and, finally, the use of a wet towel and dripping water to induce the misperception of suffocation. This last technique came to be known as water-boarding, described on a chat show by the vice-president, Dick Cheney, as a "dunk in the water" and a "no-brainer" if it could save lives.

Many of these alone were a violation of Common Article 3 of the Geneva Conventions. But rather than coming from a few bad apples at the various detention sites, there was a parallel process of improvisation and brainstorming happening at the highest levels. Before the activities were codified, the interrogators got to play Jack Bauer and draw up a wish list.

(Staff Judge Advocate at Guantanamo Diane) Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging [...]

Jack Bauer had many friends at Guantánamo Bay, Beaver said, "he gave people lots of ideas." She believed the series contributed to an environment in which those at Guantánamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might [...]

The younger men would get particularly agitated, excited even: "You could almost see their dicks getting hard as they got new ideas." A wan smile crossed Beaver's face. "And I said to myself, you know what, I don't have a dick to get hard. I can stay detached."

However, an authoritarian Administration was not going to let the sexually aroused grunts drive this policy. In fact, proxies to the highest-ranking officials in the executive branch went on a field trip to carry out their boss' desires.

Dunlavey told me that at the end of September a group of the most senior Washington lawyers visited Guantánamo, including David Addington, the vice president's lawyer, Gonzales and Haynes. "They brought ideas with them which had been given from sources in DC." When the new techniques were more or less finalised, Dunlavey needed them to be approved by Lieutenant Colonel Diane Beaver, his staff judge advocate in Guantánamo. "We had talked and talked, brainstormed, then we drew up a list," he said. The list was passed on to Diane Beaver." [...]

Beaver confirmed what Dunlavey had told me, that a delegation of senior lawyers came down to Guantánamo well before the list of techniques was sent up to Washington. They talked to the intelligence people, they even watched some interrogations. The message from the visitors was that they should do "whatever needed to be done", meaning a green light from the very top - from the lawyers for Bush, Cheney, Rumsfeld and the CIA.

The interrogators were allowed some jollies in the idea formation phase, but once the rules were put in place, it was Cheney, Rumsfeld, and Bush - their top deputies, sitting around and WATCHING live interrogations, and demanding that the most strenuous techniques be employed, going around Chairman of the Joint Chiefs Richard Myers, whose bitterness suggests he was a key source for the ABC story.

In his new book, Torture Team, Philippe Sands QC, a professor of law at University College London, reveals:

• Senior figures in the Bush administration pushed through previously outlawed measures with the help of unqualified and inexperienced military officials at Guantánamo.

• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of the vice president, Dick Cheney, and Donald Rumsfeld's defence department.

• Myers wrongly believed interrogation techniques had been taken from the army's field manual.

This is a familiar pattern of the power center in this Administration, Rumsfeld and Cheney, subverting the will of everyone else and implementing their agenda. In this case, Myers was flat-out lied to and told that the techniques were covered under the UCMJ.

And today there's a new allegation - prisoner drugging.

Adel al-Nusairi remembers his first six months at Guantanamo Bay as this: hours and hours of questions, but first, a needle.

"I'd fall asleep" after the shot, Nusairi, a former Saudi policeman captured by U.S. forces in Afghanistan in 2002, recalled in an interview with his attorney at the military prison in Cuba, according to notes. After being roused, Nusairi eventually did talk, giving U.S. officials what he later described as a made-up confession to buy some peace.

"I was completely gone," he remembered. "I said, 'Let me go. I want to go to sleep. If it takes saying I'm a member of al-Qaeda, I will.' "

Nusairi, now free in Saudi Arabia, was unable to learn what drugs were injected before his interrogations. He is not alone in wondering: At least two dozen other former and current detainees at Guantanamo Bay and elsewhere say they were given drugs against their will or witnessed other inmates being drugged, based on interviews and court documents.

I don't know if drugging was part of the SERE (Survival, Evasion, Resistance and Escape) program on which most of the tactics were based, the very program used to train American troops for what they expected to face if captured by a brutal enemy. I do know that these tactics resulted in an unknowable amount of murders, more of which are just coming to light.

Today’s documents reveal charges that Special Forces beat, burned, and doused eight prisoners with cold water before sending them into freezing weather conditions. One of the eight prisoners, Jamal Naseer, died in U.S. custody in March 2003. In late 2004, the military opened a criminal investigation into charges of torture at Gardez. Despite numerous witness statements describing the evidence of torture, the military’s investigation concluded that the charges of torture were unsupported. It also concluded that Naseer’s death was the result of a “stomach ailment,” even though no autopsy had been conducted in his case. Documents uncovered today also refer to sodomy committed by prison guards; the victims’ identities are redacted.

Here we see how this thing was both tightly controlled and yet uncontrolled at the same time. The White House offered a menu of techniques, but they also gave that "green light." A bunch of kids who relished the power to an almost sexual degree came up with their own plans and saw that they were basically unleashed and protected from prosecution. So we advance to drugging, sodomy, and murder.

I'm watching the President dancing with a mariarchi band on cable news right now, despite our knowing all this. There are those who are paying attention, however. The Justice Department's Office of Professional Responsibility are looking at the memos used to justify torture, and I imagine that will continue beyond the term of this President. Those who have been following the story see the potential for criminal indictments, and legal experts agree, at least in theory. This, by the way, is why it's going to be nearly impossible to close Guantanamo, because the human rights abuses there will find standing should detainees be allowed on US soil. Behind the scenes there is likely to be a furious effort to indemnify and immunize this President and his senior staff.

We need truth and reconciliation.