The Slow Wheels Of Justice At Guantanamo

Mohammed Jawad was captured by US forces when he was 12 years old, and under torture, he confessed to charges of terrorism. His initial arrest was for throwing a grenade at US soldiers in Afghanistan. These are two different incidents; the latter may or may not be a crime, but the former is just a pretense to label Jawad an enemy combatant and detain him indefinitely. The Obama Justice Department has admitted that it has no evidence to justify the continued holding of Jawad as an enemy combatant, and judges have repeatedly considered his confession inadmissable in court. Today, the Justice Department will relent on that point, but ask to delay Jawad's release until they determine whether they can bring federal charges against him.

Avoiding a showdown with a federal judge, the Obama administration agreed Wednesday to release from Guantanamo Bay an Afghan prisoner who was captured as a teenager and held nearly seven years for allegedly throwing a grenade at U.S. soldiers.

The government said it would "promptly release" Mohammed Jawad, now 23, and send him to Afghanistan -- but only after it sent a required notification to Congress explaining whether his release would pose a risk to national security. That will take 22 days, the administration said [...]

The case could have led to a constitutional showdown, because no judge has forced the release of a Guantanamo prisoner over the objections of the government.

But in Wednesday's order, the administration agreed to release Jawad after informing Congress. Lawmakers adopted an appropriations measure this year that requires the administration to provide "an assessment of any risk to the national security" before freeing a Guantanamo prisoner.

Jonathan Hafetz, an ACLU lawyer for Jawad, said he was "cautiously optimistic" that his client would be released soon.

I cannot see how the DoJ can justify keeping Jawad beyond those 22 days. He's spend 1/3 of his life in US custody. The grenade attack, not confirmed, occurred in the midst of a war zone. The Attorney General of Afghanistan is asking that he be returned home. We need to consider this time served and let him go.

This, by the way, is how the justice system should work - a detainee gets a habeas hearing to question his imprisonment, and the government can then either charge or release.

The Tanks Of Lackawanna

This is the second story in a week about how noble George W. Bush averted disaster. First he stuck to his principles about honesty and refused to pardon Scooter Libby (who he did already commute, incidentally, somehow that didn't make it into the paean of an article). Today we learn he was all that stood between us and tanks rolling down the streets:

Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

It's not that I disagree that this was brought up as an option, it's the positioning of Bush as the defender of the Constitution that kind of galls me. Cheney was the Constitution's chief beta-tester ("testing the Constitution" is quite a turn of phrase, no?), and considering the wealth of other illegal actions, all justified like this one by at-the-ready memos from John Yoo, I just doubt that Bush really made these decisions, even if he felt like he did.

Frankly, all this dumping on Dick seems like part of the Bush Legacy Project to me. While Fourthbranch has been ready for his closeup throughout the Obama Administration - right up until the moment that Eric Holder started talking seriously about prosecutions that didn't involve him, that is, then he slithered back into the undisclosed location - Bush has kept a low profile in Dallas, gave a couple speeches, told stories about walking his dog and being jus' folks, and one by one all of these articles showing how he wasn't SO bad - he didn't want to use the military in American cities, after all! - keep popping up, using anonymous sources. It's a nice kickoff for the library.

Meanwhile, there is an important component to all of this, namely, the stated reason why the authority to use military force was sought:

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Earlier that summer, the administration designated Jose Padilla an enemy combatant and sent him to a military brig in South Carolina. Mr. Padilla was arrested by civilian agencies on suspicion of plotting an attack using a radioactive bomb.

(This shows once again how the construction of Bush as a savior of the Constitution is false - he USED the powers granted by Yoo to designate Padilla an enemy combatant.)

So because of concerns that the evidence was weak, Cheney wanted to use "a lower threshold of evidence," and denote the Lackawanna Six enemy combatants to keep them outside the criminal justice system. We've gotten rid of the enemy combatants term, but not really the thinking of getting around the standards of evidence when dealing with terrorism suspects. While the report on detention policy and Guantanamo Bay has been delayed a number of months, in the preliminary report, we see the seeds of a three-tiered system of justice based on the amount of evidence gathered, altering the due process granted to ensure that the government can continue to confine anyone it captured relating to the so-called war on terror. As Glenn Greenwald writes today, in reaction to the NYT article:

All of this underscores why it is so important to vigorously oppose the efforts of the Obama administration (a) to continue many of the radical Bush/Cheney Terrorism programs and even to implement new ones (preventive detention, military commissions, extreme secrecy policies, warrantless surveillance, denial of habeas corpus) and (b) to endorse the core Orwellian premise that enables all of that (i.e., the "battlefield" is anywhere and everywhere; the battle against Terrorism is a "War" like the Civil War or World War II and justifies the same powers). By itself, the extreme injustice imposed by our Government on the individuals subjected to such tyrannical powers (i.e., those held in cages for years without charges or any prospect for release) should be sufficient to compel firm opposition. But the importance of these issues goes far beyond that. Even if the original intention is to use these powers in very limited circumstances and even for allegedly noble purposes ("only" for Guantanamo detainees who were tortured, "only" for people shipped to Bagram, "only" for the Most Dangerous Terrorists), it's extremely dangerous to implement systems and vest the President with powers that depart from, and violently betray, our core precepts of justice [...]

Those are the stakes when it comes to debates over Obama's detention, surveillance and secrecy policies. To endorse the idea that Terrorism justifies extreme presidential powers in these areas is to ensure that we permanently embrace a radical departure from our core principles of justice. It should come as no surprise that once John Yoo did what he was meant to do -- give his legal approval to a truly limitless presidency, one literally unconstrained even by the Bill of Rights, even as applied to American citizens on U.S. soil -- then Dick Cheney and David Addington sought to use those powers (in the Buffalo case) and Bush did use them (in the case of Jose Padilla). That's how extreme powers work: once implemented, they will be used, and used far beyond their original intent -- whether by the well-intentioned implementing President or a subsequent one with less benign motives. That's why it's so vital that such policies be opposed before they take root.

Those Presidents who fail to show respect and deference for the system of justice that has held over two centuries and more, even if they do not use the powers granted to them, set in motion a process to devolve that system. The precedents set by the Bush Administration, and potentially the Obama Administration, will have a lasting impact. So pardon me if I don't send a thank you note over to the 43rd President for not ordering an up-armored Humvee through a Buffalo suburb.

Charge, Release, Or Change The Terms And Do The Same Thing

Yesterday I wrote about the Obama Administration decision to drop the term "enemy combatant" in dealing with detainees at Guantanamo. This was positive, as was rejecting the reliance on "inherent authority" as commander in chief in the detention of these prisoners. But semantics only go so far, and I should have done a deeper assessment of this.

WASHINGTON – The Obama administration said Friday that it is abandoning one of President George W. Bush's key phrases in the war on terrorism: enemy combatant. But that won't change much for the detainees at the U.S. naval base in Cuba — Obama still asserts the military's authority to hold them. Human rights attorneys said they were disappointed that Obama didn't take a new stance.

The Justice Department said in legal filings that it will no longer use the term "enemy combatants' to justify holding prisoners at Guantanamo Bay.

"This is really a case of old wine in new bottles," the Center for Constitutional Rights, which has been fighting the detainees' detention, said in a statement. "It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released."

We are still holding prisoners without charges, based on theories that, while not as extreme as the Bush Administration's, remain incomplete. Emptywheel is very direct about this.

The President has the authority ... the President determines ... the President has the authority.

You see, it's still the same unitary power, stripped of the baggage of Bush's vocabulary. And even as they abandon Bush's vocabulary, they progressively expand the reach of that authority to include just about all those whom Bush already determined were enemy combatants, no matter how nebulous that person's ties to al Qaeda [...]

In short, it's a big, fat, cynical game. A word game, like any other parlor game, giving a tired old concept a verbal facelift. Without, however, changing the concept itself.

The Obama Administration suggests in this filing it is just trying to meet its March 13 deadline. My first and best response to that is the same I used to have--as a professor--when students obviously turned in shoddy work just to meet my hardass deadlines: to tell the lazy student to start doing her work.

"You haven't completed the terms of the assignment. No matter whether you got this handed in by the designated deadline or not, you have not done your work. So take this back and do the work assigned in the first place. And don't turn in this shoddy word game as serious work again."

Thus far, this is just Bush's policies under new name. And they're not even clever enough word games to fool most of the people--particularly the international community--these word games were designed to fool.

Adam Serwer has more, with basically the same conclusion. The Administration gave themselves an out by saying that the process is evolving and is subject to future determination. I think the verdict is clear - bring these detentions in line with Constitutional law and international norms, or reap the consequences. Charge, or release.

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.