Roeder, Terrorist, Lights The Ticking Time Bomb

Last week I wrote this post about applying the standards of terror policies against Muslim extremists to the anti-abortion right, and when I cross-posted on Daily Kos I used the provocative title Should We Waterboard Scott Roeder? A lot of people got really mad, failing to read the entire post and just angered that I would suggest such a thing. Of course I wasn't, I was merely playing out the implications of the belief that we must torture terrorists who might have information on future attacks, and presumptively detain suspects who might engage in attacks in the future, and try them in national security courts instead of the criminal justice system.

Now we have yet another data point.

The man charged with murdering a high-profile abortion doctor claimed from his jail cell Sunday that similar violence was planned around the nation for as long as the procedure remained legal, a threat that comes days after a federal investigation launched into his possible accomplices.

A Justice Department spokesman said the threat was being taken seriously and additional protection had been ordered for abortion clinics last week. But a leader of the anti-abortion movement derided the accused shooter as "a fruit and a lunatic."

Scott Roeder called The Associated Press from the Sedgwick County jail, where he's being held on charges of first-degree murder and aggravated assault in the shooting of Dr. George Tiller one week ago.

"I know there are many other similar events planned around the country as long as abortion remains legal," Roeder said. When asked by the AP what he meant and if he was referring to another shooting, he refused to elaborate further.

The conservative philosophy of a "one percent doctrine" means that if there's a one percent chance Roeder is telling the truth, then we must use every tool at our disposal to stop attacks. So intellectually honest conservatives like Dick Cheney will presumably endorse harsh interrogation tactics and indefinite detention for the anti-abortion right.

Waiting for that press release to come by my desk any time now.

Of course, like John Cole I don't think any of these policies work. And in fact, the Justice Department reacted to the Roeder comments by stepping up enforcement at abortion clinics. Which is how you deal with crime, through the system tested for 200-plus years that provides the right balance between liberty and security.

Equal Justice

I'm getting to this late, but Jack Balkin (h/t Hilzoy) has some excellent questions about George Tiller's alleged murderer Scott Roeder:

"(1) Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers? If we believe that Roeder and other domestic terrorists will plan further attacks on abortion providers and abortion clinics if we let them free, can we subject them to indefinite detention?

(2) The Obama Administration is currently considering a national security court to make decisions about the detention of suspected terrorists, with the power to order continued preventive detention. Should this court be able to hear cases involving U.S. citizens, whether they are Muslim or Christian? (...)

(4) One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

(5) Terrorists and terrorist organizations need money and resources to operate effectively. Often the only way to stop them is to dry up their sources of financial and logistical support. Can the U.S. government freeze the assets of pro-life organizations and make it illegal to contribute money to a pro-life charity that it believes might funnel money or provide material support to persons like Roeder or to organizations that practice violence against abortion providers? Can the government arrest, detain, and seize the property of anti-abortion activists who helped Roeder in any way in the months leading up to his crime, for example by giving him rides or allowing him to stay in their homes?"

In fact, if you want to talk about ticking time bomb scenarios, Roeder would certainly be a subject for interrogation. He has been involved in pro-life movements for many years; he was arrested and convicted in 1996 for attempting to bomb an abortion clinic; he attempted to break and enter into Tiller's clinic in the weeks leading up to the murder (a federal crime under the FACE Act), and his name and license plate number were sent to the FBI; he had the phone number for Operation Rescue in his car, and Operation Rescue provided information about Tiller to Roeder before the shooting. In the wake of Tiller's murder, a pro-life activist published photos and personal information of other doctors who perform late-term abortions.

So on those grounds, considering there may be other individuals seeking to kill American doctors, considering that Roeder has multiple ties to the movement that would carry out those killings, it would only make sense to use the interrorgation techniques on Roeder that would help protect Americans. Right? Furthermore, everyone associated with these movements, all of the dangerous suspected domestic terrorists or those with ties to them, including the commentators who fanned the flames of hate, ought to be locked up without charges so that they don't hurt Americans. Right? Right?

Well, I don't believe the answer is yes. But apparently, on a bipartisan basis, our political leadership does believe that some individuals should be subject to indefinite detention in case they commit a crime in the future, and that the legal system is not equipped to handle them. And the overwhelming majority of at least one major political party believes that torture is justified if it saves American lives. As Hilzoy says:

Obviously, though, these tactics were never meant to be used against people like us. It's only other people -- scary, presumptively guilty other people -- whom we get to detain without trial, based on evidence that would not win a conviction in a normal court of law. Not people like us.

Personally, I think this would be a bad idea. But a lot of people seem to disagree. They seem to think it's fine to toss aside centuries of legal tradition, not to mention our civil liberties. What's really strange is that they claim that they are doing this because they love freedom.

Well said.

Maybe someone in the media could ask any member of either party about this.

The Speech Is Not Enough

President Obama made a nice speech today, defending his national security policies and the theory that we should not shrink from our values in a maelstrom of fear. He stood at the National Archives, in front of the founding documents, and acted as a defender of them.

And that's great. Obama made quite a few excellent points, about the closure of Guantanamo, the need for checks and balances and vigorous oversight from the other branches of government, and the failure of the previous Administration to keep faith with our values.

Bully. Wonderful.

I'm pretty much done with talk. On these issues in particular, I will look to the actions of the Administration to make determinations on their success or failure in my eyes. And those actions are likely to fail as much as they succeed. Obama basically acknowledged this. I think this was the key moment in the speech, the moment where Obama tried to position himself as offering some wise middle path and marginalizing "absolutists" on either side of him:

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants - provided that it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. That, after all, is the unique genius of America. That is the challenge laid down by our Constitution. That has been the source of our strength through the ages. That is what makes the United States of America different as a nation.

When he talks here about absolutists, I can only assume he's talking about those of us who believe that no prisoner should be held indefinitely without charges, who believe that there need not be a military courts process outside the one used on our own soldiers, with all of the agreed-upon safeguards and rules for acquiring justice over 200-plus years, who believe that people described vaguely as "supporters" of criminal activities are not as culpable as the criminals themselves and cannot be held without legitimate charges, who believe that the government should not be able to assert state secrets as a means solely to shut down accountability by the judicial branch. If that makes me an extremist, cue the Barry Goldwater line about extremism in the defense of liberty being no vice. I'm simply articulating Constitutional principles, much like the human rights groups who met with Obama yesterday have articulated for many years. And I come out of this speech with a similar reaction to one of the participants in that discussion.

Asked whether the president had pacified some of the concerns she brought to the White House on Wednesday, (Human Rights First CEO Elisa) Massimino said that she was pleased with the opportunity for engagement. Beyond that, she still registered concerns.

"I think that many of us were disappointed by the announcement about the military commissions and wondered what the reasoning was behind that. And to be honest, I am still wondering having been in this meeting today. I don't think that this fits the overall framework that the president had articulated about using our values to reinforce a counter terrorism strategy against al Qaeda."

Obama seems committed to providing a durable framework for future Presidents to deal with these issues, and seems committed to a robust process of oversight to allow for a full examination of whether the policies are consistent with Constitutional principles. And then he throws out something like the military commissions revival or hints about preventive detention (literally, the pre-crime process from Minority Report) and you wonder if this is the same person. The actions have not matched the rhetoric, at least not always.

Now, as a token of some sort, the US government will prosecute Ahmed Khalfan Ghailani, who was allegedly involved in the bombing of US Embassies in Africa in 1998, in a New York City courtroom. That's consistent with our criminal justice system and the proper method of dealing with terrorist activity. It lends credibility to the process and shows that the United States is serious about joining the community of law-abiding nations again. But one token is not enough. And I will continue to fight for civil liberties as long as I see them being abused.

Now, Dick Cheney crawled out of the primordial ooze and I'm supposed to be watching his speech today as well. Here's my only response to that.

The Military Commissions Would Be The Problem

They've hinted at this for weeks, and obviously the civil liberties and human rights communities didn't offer enough pushback, so the President is going ahead with modified military commissions to try suspected terrorists, the same commissions he decried as a candidate.

The Obama administration will announce plans Friday to revive the Bush-era military commission system for prosecuting accused terrorists, current and former officials said, reversing a presidential campaign pledge to rely instead on federal courts and the traditional military justice system [...]

White House officials insisted that Obama was not overturning a campaign vow. The president "never promised to abolish" military commissions, an administration official said. However, during his campaign Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in one such statement on the subject last August.

The administration still intends to prosecute some Guantanamo Bay detainees in federal courts, as Obama had pledged. But officials have concluded that a small number of detainees can be tried only in the military commissions, said a U.S. official familiar with the changes, speaking on condition of anonymity in advance of Friday's announcement [...]

The administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and will restrict the use of hearsay evidence.

The rule changes will also give detainees more latitude in choosing lawyers to represent them, according to the U.S. official, who described them on condition of anonymity because of Friday's announcement.

But those changes are widely viewed as cosmetic by critics both in and out of government.

No military judge has allowed evidence obtained through coercion or torture anyway. And these few safeguards did not form the basis of objections from civil liberties groups, as Glennzilla notes today. The problem was taking these cases out of the standard criminal justice system or the Uniform Code of Military Justice and creating a new system outside standard law that during the Bush Administration was correctly seen as nothing but a kangaroo court. If you argue that we need military commissions, you basically argue that the legal system is somehow insufficient to try terror suspects, despite the fact that prosecutors have obtained dozens of convictions for those suspected of terrorism in the past. It creates an authoritarian system that the President can determine to direct at certain suspects but not others. It weakens our legal system overall, by suggesting that it cannot properly try certain sensitive cases. And it would call into question any convictions gained through the process because of their existence outside the normal legal channels, seemingly for arbitrary reasons. Therefore it is not the specifics of the commissions that constitute the problem, but the very fact of the commissions themselves.

If we can use a court-martial system, we should. The message to the Islamic world would be much more powerful if we use the same system to try suspects of terrorism that we use to try our own members of the military. Obama's own deputy Solicitor General, Neal Katyal, explains:

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III. . . .

The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

You either believe in American law or you don't. The President has made his decision.

"Most Transparent Administration In History"

Sorry, I was out for a bit.

There was an expectation of this today, and now the Obama Administration made it official - they're going back to court to block the release of thousands of photographs from Afghanistan and Iraq of detainee abuse sought by the ACLU.

President Obama said on Wednesday that he is seeking to block the release of photographs that depict American military personnel abusing captives in Iraq and Afghanistan, worrying that the images could “further inflame anti-American opinion.”

As he left the White House to fly to Arizona for an evening commencement address, Mr. Obama briefly explained his abrupt reversal on releasing the photographs. He said the pictures, which he has reviewed, “are not particularly sensational, but the conduct did not conform with the Army manual.”

He did not take questions from reporters, but said disclosing the photos would have “a chilling effect” on future attempts to investigate detainee abuse.

The president’s decision marks a sharp reversal from a decision made last month by the Pentagon, which agreed in a case with the American Civil Liberties Union to release photographs showing incidents at Abu Ghraib and a half-dozen other prisons. At the time, the president signed off on the decision, saying he agreed with releasing the photos.

Robert Gibbs, the White House press secretary, said that the president met last week “with his legal team and told them that he did not feel comfortable with the release of the D.O.D. photos because he believes their release would endanger our troops.”

This may be the most Bushian thing Obama has done, not necessarily because of the action, but because of the rationale. First off, the idea that the release of the photos would endanger the troops looks over the fact that the troops are in danger RIGHT NOW because of their placement in harm's way in two unnecessary and failed wars. We've heard all this happy talk about the war in Iraq, yet one set of photos would spark a revolution? I think it betrays a naivete about what the Iraqis already know about detainee abuse. After all, they have, um, access to those who were abused, namely their relatives.

Second, Obama said that the release would have a "chilling effect" on other attempts to investigate abuse. How? If anyone stopped taking photos because of their release, that would have already happened after the release of the pictures in Abu Ghraib. Look, the Defense Department wants everything they do to remain secret. But this is a democracy, and I dare say that the American taxpayer has paid for those photos. We deserve an accounting. And if Obama thinks that denying the EVENTUAL release (he'll lose this in court) will somehow mute the calls for an independent investigation over torture, clearly the opposite will happen.

I hope the stars are out of everyone's eyes with respect to Obama now. And this reversal is sadly not isolated, particularly on national security and civil liberties issues. They want to revive the discredited military commissions process, and sidestep a criminal justice system that has worked for 225 years in favor of what amounts to a kangaroo court. They threatened Britain to keep quiet over evidence showing the torture of Binyam Mohamed, or else they would cut off cooperation with the British government on terror operations and intelligence. They have continued the practice of declaring the state secrets privilege to shut down judicial review of past actions of the executive branch. On these issues, Obama has offered no change whatsoever, but an allegiance to very right-wing ideas about security and privacy and civil liberties. It's shameful.

Terrorizing The Rule Of Law

The GOP geniuses think they've found an issue they can run with. This has slowly built over the past several weeks, but now they've done a full rollout. It starts with the movie trailer, a preview of coming attractions.



Then they followed through with the main event, a bill literally called “The Keep Terrorists Out Of America Act,” which would prohibit the transfer of any "Terrorist" from Guantanamo Bay into a prison facility in the United States, without approval from the state's Governor and legislature, and some other legislative hoop-jumping.

Taken to its extreme, Republicans would call for the immediate closure of all prisons ("criminals... in your community!"), and the dispatching of all 2.3 million prisoners to some offsite floating barge, Australia, or that island of plastic in the Pacific. To suggest that a maximum-security prison could not possibly hold a Dangerous Terrorist is an insult to the men and woman of the federal corrections system, who already hold convicted terrorists in custody who received justice through a court of law, and basically acknowledges that those facilities are completely insecure, and should be feared by local residents. I'm sure the RNC and the Republican members of the House will pick up the costs of moving every single prisoner over to that plastic island. Because think of the children.

When pressed on the point that Americans held 425,000 German POWs at the height of WWII, bill sponsor Pete Hoekstra, who is crazy, incidentally, casually remarked that the threat of Al Qaeda surpasses the Nazis.



A substantial chunk of the Republican Party believes that people who live in caves represent a greater threat to the American way of life than the Third Reich. Just so you know.

However, I'm convinced that this is a bit of misdirection and Overton Window-lifting. Of course the idea that Scary Terrorists would endanger local communities while in prison is absurd and should be rejected. But that's not really the ultimate plan. John McCain and Lindsey Graham posted on the conservative blackboard, the Wall Street Journal editorial page, with the more "sensible" view - that we must hold suspects indefinitely without trial for as long as we please, in violation of habeas corpus statutes, until they are tried in sham courts without Constitutional criminal justice protections.

• Second, military commissions remain the appropriate trial venue for these individuals. We would strenuously oppose any effort to try enemy combatants in our civilian courts. By an overwhelming bipartisan vote in 2006, Congress passed the Military Commissions Act, which set forth procedures for trying enemy combatants for war crimes.

Our domestic criminal laws -- including their treatment of classified information -- are ill-suited for the complex national security issues inherent in the trial of enemy combatants. We have great faith in our military justice system -- appropriately modified for war crimes trials -- and we believe that military judges and lawyers render fair and impartial justice not only for our troops, but for enemy combatants as well.

• Third, preventive detention will continue to have a place in the war on terror . Under the law of war, the idea that an enemy combatant has to be tried or released is a false choice. Rather, it is well-established that combatants can be held off the battlefield as long as they present a military threat.

While there is little doubt that we initially cast the net too broadly in determining who merited enemy combatant status, the Department of Defense estimates nearly one in 10 detainees released from Guantanamo have returned to the battlefield, including Said Ali al-Shihri (al Qaeda in Yemen's second-in-command), and Abdullah Gulam Rasoul, who reportedly now serves as the Taliban's operational commander in southern Afghanistan. We cannot let this continue.

A significant group of detainees still in custody at Guantanamo may be too dangerous to release, but they are not suitable for war crimes trials. In these cases, a system needs to be devised in which a designated national security court, with a uniform set of standards and procedures administered by a civilian judge, hears the petitions for habeas corpus authorized by the Supreme Court, and an annual interagency review is conducted to determine whether the detainee remains a security threat to the United States.

"Preventive detention" is a nice turn of phrase. "I think you may steal a candy bar later. Better put you in jail for a few months until everything blows over."

And unbelievably, this "fallback" position, which I always considered the reason to close Guantanamo in the first place, has gained traction inside the White House.

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.

Continuing the military commissions in any form would probably prompt sharp criticism from human rights groups as well as some of Mr. Obama’s political allies because the troubled system became an emblem of the effort to use Guantánamo to avoid the American legal system [...]

In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”

These military commissions represent a total obviation of the rule of law, an attempt to gather convictions they could not otherwise get. And what's left unsaid is the always shaky phraseology of the Obama plan, where some Gitmo detainees would be tried, some released, and this vague "third category," where the legal black hole of Guantanamo apparently remains.

It does no service, particularly in relating to our allies, to just insource Guantanamo with the same methods. People weren't angry about the site or the symbol, but the policies. But because the Republicans are being so transparently ridiculous with their "Eek! Prisoners going to prison, they'll kill us all!!!" pose, there may be a tendency to back up the White House's viewpoint. Not until they make perfectly clear that they intend to either try Gitmo prisoners in American courts, or release them. Any other options are unacceptable.

More Pushback

Here's some more institutional pushback from the military against President Obama - a military judge is continuing a Guantanamo hearing in contravention of an executive order.

A military judge in Guantanamo Bay today denied the Obama administration's request to delay proceedings for 120 days in the case of a detainee accused of planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others.

The decision throws into some disarray the administration's efforts to buy time to review individual detainee cases as part of its plan to close the U.S. military prison at the Guantanamo naval base in Cuba. The Pentagon may now be forced to temporarily withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent.

Nashiri is facing arraignment on capital charges on Feb. 9, and Judge James Pohl, an Army colonel, said the case would go ahead.

"We just learned of the ruling here . . . and we are consulting with the Pentagon and the Department of Justice to explore our options in that case," White House spokesman Robert Gibbs said. Asked at a news briefing whether the decision would hamper the administration's ability to evaluate the cases of Guantanamo detainees, Gibbs replied: "No. Not at all."

Mcjoan says this isn't a matter of denying a simple request. There were two orders; one was a request that there be a delay in hearings for 120 days, and the other a direct order, from basically the prosecution in the various cases, to put a continuance on them.

Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

The executive branch directs military commissions. The executive called all ongoing proceedings to a halt. End of story. This Army Colonel is in violation of the law. BTD has more.

They're going to keep testing this guy until he hits back...

Great Except The Gray Areas

Obama is following through on his promises. He is closing the Guantanamo prison and restricting the interrogation tactics used by the CIA. Before we get to the details, on the top line this is great news.

President Barack Obama is ready to issue orders on Thursday to close Guantanamo prison and overhaul the treatment of terrorism suspects, in a swift move to restore a U.S. image hurt by charges of torture.

A draft executive order obtained by Reuters on Wednesday sets a one-year deadline to close the controversial U.S. military prison at Guantanamo Bay, Cuba, where foreign terrorism suspects have been detained for years without trial.

Obama, who was sworn in as president on Tuesday, is expected to issue the order on Guantanamo on Thursday. He will also ban abusive interrogations and order a review of detention policies for captured militants, said congressional aides and a White House official [...]

"It's exactly the kind of bold action that is necessary," said Elisa Massimino, executive director of the Human Rights First advocacy group. "Both the speed and the content will send a clear message to our own people and the rest of the world that what he said ... he meant." [...]

Another presidential order would ban CIA use of "enhanced" interrogation methods by making all U.S. agencies abide by the Army Field Manual, which bans techniques such as waterboarding, a form of simulated drowning the CIA says was used on three terrorism suspects.

Outgoing CIA chief Michael Hayden has defended the harsh techniques and called the Army manual too restrictive but says the agency would abide by limitations. The CIA declined comment on the reports.

Obama is also expected to order a review of all U.S. detention policies.

Obama is really setting a bad precedent of keeping campaign promises and abiding by the rule of law. It's like the oath of office reboot, setting the horrible precedent of acknowledging mistakes and seeking to rectify them. Who does this guy think he is?

Aides sent around the draft order on Guantanamo today, and I think my favorite part is "the individuals currently detained at Guantánamo have the constitutional privilege of
the writ of habeas corpus." 1300 years of Western law restored in one sentence.

The rest of the details look fairly good. They'll essentially either try or release detainees, although there's this gray area of "other disposition" which needs to be clarified. With people like Marty Lederman now telling the President what they can and cannot do, I'm hopeful that this won't turn into a loophole. But it won't be for lack of trying by those who want to demagogue the issue.

GRAHAM: I do believe we can close Gitmo, but what to do with them? Repatriate some back to other countries makes sense, if you can do it safely. Some of them will be tried for war crimes. And a third group will be held indefinitely because the sensitive nature of the evidence may not subject them to the normal criminal process, but if you let them go, we’ll be letting go someone who wants to go back to the fight. … So we’ve got three lanes we’ve got to deal with: Repatriation, trials, and indefinite detention.

Indefinite detention is inconsistent with the Constitution and international law, as well as the stated rights granted under habeas corpus. And it cannot be allowed as a "third way" here. I think that civil liberties groups understand this and will be vigilant in ensuring that detainees be only tried or released. I can warm to the idea that this process will take up to a year (especially given the state of the evidence, which is haphazard at best according to prosecutors), but there have to be bright lines. Here's Anthony Romero, putting it much more diplomatically than I would.

"This is the first ray of sunlight in what has been eight long years of darkness, of trampling on America's treasured values of justice and due process. The order is remarkable in its timing and its clear intent to close down Guantánamo and unequivocally halt the Bush administration's shameful military commissions. While the order leaves some question as to how some detainees will be released or prosecuted, we trust that's not President Obama's intent and hope that any ambiguity is due to the fact that this order was done on day one in record time. We are confident that President Obama understands that indefinite detention without trial must end once and for all and that detainees should be either prosecuted in a federal court or, if there is no evidence against them, released or transferred to countries where they will not be tortured. Our centuries-old justice system is well-equipped to handle these cases, and it's a great relief to finally have a president who is committed to upholding American values and the rule of law. Although we have a long road ahead to get to an America we can be proud of again, change has begun."

I'm confident that the ACLU will keep pushing for justice. And while they're at it, they ought to trust but verify on torture. The most recent report before today's news that Obama would bring the CIA under the Army Field Manual included a "loophole" that would allow torture in extreme cases.

However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

That's completely unacceptable and would be counter-productive. In addition, even if the entire government is brought under the Army Field Manual, we're STILL not done. As bmaz notes, even techniques allowable under the AFM can be combined in a fashion to effectively torture.

This is where Susan Crawford's stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama's, and other politicians', simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

It could be that this is the "loophole" sought by Obama advisers, to allow the combination of certain techniques. Appendix M of the Army Field Manual may allow this latitude. That would need to be excised so that there is no ambiguity about the complete end to the torture regime.

Overall, we have an excellent set of proposals here, but the gray areas need to be filled in with the ideals of justice. President Obama said that the rule of law "will be a touchstone of my Administration". He has every opportunity to prove it.

...more hints that extra-legal interrogation processes may be allowed. Don't defend it, don't mend it, just end it, Mr. President. Most Americans support you banning torture.

The Gitmo Trap

Change has come early to Guantanamo Bay.

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.

Seven Years For This

One of the most absurd trials in American history ended today when Salim Hamdan was sentenced to 5 1/2 years for "providing material support to terrorism" in his capacity as Osama bin Laden's driver. After seven years on the so-called war on terror, we have the guy who changed the oil to show for it, and we held him so long (he got time served) that he's eligible to leave in six months (not that the US government will comply). Mind you that material support for terrorism was not considered a war crime subject to a military tribunal at the time that Hamdan was bin Laden's driver. This is an ex post facto conviction based on the Military Commissions Act of 2006. And what a commission it was. ACSBlog notes:

Salim Hamdan, who is being held at the military’s detention facility in Guantanamo Bay, Cuba, and served as Osama bin Laden’s driver, was convicted by a military tribunal of providing material support for terrorism and acquitted of conspiracy charges, the New York Times reported. ACSBlog published reports from the trial by observers Sahr MuhammedAlly, Aaron Zissler, and Frank Kendall, who represented the organization Human Rights First.

The Associated Press reported “Hamdan's attorneys said the judge allowed evidence that would not have been admitted by any civilian or military U.S. court, and that interrogations at the center of the government's case were tainted by coercive tactics, including sleep deprivation and solitary confinement.” [...]

Yesterday evening, Military Commission Judge Keith Allred acknowledged that he “may very well have instructed the [military commission jury] members erroneously,” but the prosecution and defense apparently agreed to let the original jury instructions stand, the Times reported.

More than anything, this is embarrassing. And there's a whole new generation of tortured prisoners being held to this day:

The U.S. military is segregating violent Iraqi prisoners in wooden crates that in some cases are not much bigger than the prisoners.

The military released three grainy black-and-white photos of what it calls the “segregation boxes” used in Iraq. They show the rudimentary structures of wood and mesh. Some of the boxes are as small as 3 feet by 3 feet by 6 feet tall, according to military officials. They did not release a picture of a box that size.

The military said the boxes are humane and are checked every 15 minutes. It said detainees, who stand in the boxes, are isolated for no more than 12 hours at a time.

Shut up, do-gooders, the boxes are checked, what more do you want?

Justice Denied At Gitmo

I don't know if you've been following the Guantanamo trial of Salim Hamdan, Osama bin Laden's driver, accused of - honestly, the whole trial is over and I don't really know what he's been accused of. Hamdan was a driver who fixed tires and changed oil - that alone is meant to be grounds for the death penalty, I guess. The trial has been filled with interesting revelations and extreme stretches of Constitutional law, but very little resembling any kind of coherent case fingering Hamdan as a terrorist.

We've learned that Hamdan cooperated with interrogators in fingering bin Laden's chief bodyguard - who was in Gitmo as well - but interrogators let him go (so much for gathering actionable intelligence).

We've seen Hamdan's lawyers object to extreme violations of judicial practice over and over, only to see themselves overruled by the judge.

We've seen revelations of all kinds of torture techniques used against Hamdan, including video evidence of the coercive techniques, and while testimony gained through these practices was supposed to be prohibited, the judge reversed himself:

Although Allred acknowledged in a ruling issued the day before trial that Hamdan was subjected to "various types of coercive treatment," he overruled the objection to the tapes, saying that the rules allow the admission of coerced testimony if it is deemed "reliable" and "the interests of justice." Those tapes, he concluded, served the interest of justice and were allowed in. Never mind the coercion.

The opinion released by the judge allowing the testimony despite the coercive treatment was five pages long, with almost all of them blacked out.

We've heard about defense testimony delivered in secret, away from the media and observers, yet with Hamdan still in the room, because there are no plans to ever let him go.

(ACLU Staff Attorney Ben Wizner) points out that Hamdan was allowed to stay in the courtroom and hear the classified information of these two witnesses because they were talking about how Hamdan was tortured. Ben adds: "The government doesn’t mind revealing that information to detainees because it doesn’t plan ever to release them."

There's this bit:

Harry H. Schneider Jr., a defense lawyer, held up a book and said he wanted to ask Mr. McFadden (a witness) a question based on it.

There was a stir at the prosecution table.

“I’m told it’s classified, so I can’t ask you,” Mr. Schneider said.

The book was the 9/11 Commission Report, a former best seller.

Near the end of the trial, jurors were shown a graphic film about the history of Al Qaeda, which seems prejudicial to the extreme. This is incredible.

The disturbing images, including some not previously released by U.S. authorities, were part of a film produced and narrated by a prosecution witness under contract with the tribunal hierarchy, the Office of Military Commissions.

The film was written, produced and narrated by Evan F. Kohlmann, who described himself as an international terrorism consultant who has conducted research for government agencies in the U.S. and several Western countries.

Navy Capt. Keith J. Allred, the judge presiding over the trial of Salim Ahmed Hamdan, a former driver for Osama bin Laden, cautioned the jurors that the film was being shown to provide an understanding of Al Qaeda operations, and that Hamdan was "not alleged to have been involved in any of these attacks."

Most of the film, "The Al Qaeda Plan," involved propaganda videos from Al Qaeda's media wing, As Sahab, and much of the footage had been filmed and broadcast after Hamdan was arrested in Afghanistan in November 2001.

In fairness, Judge Allred only allowed 6 of the 7 segments to be shown.

And yet, after all that, with the judicial thumb clearly on the scale of the prosecution, as the jury goes to deliberation, there is still no verdict, incredibly enough.

The lawyers can explain this one to me, but the judge in the Hamdan case has declined to change his ruling that evidence that Hamdan transported missiles to be used against US soldiers, as opposed to civilians or other protected persons, would not be sufficient for conviction. This is the standard applied to POWs under the Law of War, and NOT the standard put forward by the Bush Administration for the "illegal enemy combatant" category it created and has used to justify creating a separate military tribunal system.

Also, it appears the jury is still deliberating.

This has become such a convoluted travesty that the jury probably doesn't even understand the instructions, the rules for conviction, or anything else. They're obviously being pushed to come up with a conviction and forget about the legal niceties. For the moment they appear to be doing their job.

Rule Of Law Update

Yesterday a judge in the war crimes tribunal for Osama bin Laden's driver Salim Hamdan barred some evidence from the proceedings because of the way in which it was gathered.

The judge in the first American war crimes trial since World War II barred evidence on Monday that interrogators obtained from Osama bin Laden's driver, ruling he was subjected to "highly coercive" conditions in Afghanistan.

But Judge Keith Allred, a Navy captain, left the door open for the prosecution to use statements Salim Hamdan made at Guantanamo, despite defense claims that all of his statements were tainted by alleged abuse including sleep deprivation and solitary confinement.

To be clear, these military commissions are expected to be little more than show trials. And yet, even there, what the Bush Administration authorized shocks the conscience to the degree that evidence has to be thrown out. Not only is torture ineffective and yields bad results, it can't be used to prosecute, either.

Here's what they did to Hamdan:

At Bagram, Hamdan says he was kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back. He says his captors at Panshir repeatedly tied him up, put a bag over his head and knocked him the ground.

Will there ever be a reckoning in this country? And if those in the Administration are arguing that evidence obtained through torture is admissable, is that a giveaway for what we can do to them?.

The Mukasey Gambit

Every election year, the Bush Administration manages to come up with one killer piece of legislation right around the end of the cycle to use to prove Democratic weakness and beat them over the head. It works most of the time, and even if they don't go on to electoral victory, they end up extracting key concessions from the other side in the name of national security. This year, the Attorney General is looking to invalidate Boumediene. I think I have to repeat Mukasey's "Contract On America" in full:

First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States. There are more than 200 detainees remaining at Guantanamo Bay, and many of them pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans. As a federal judge, I presided over a prominent terrorism-related trial, and the expense and effort required to provide security before, during, and after the trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in his habeas proceeding would require extraordinary efforts to maintain the security of the site. To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo Bay, which is both remote and safe.

Far more critically, although the Constitution may require generally that a habeas court have the authority to order release, no court should be able to order that an alien captured and detained abroad during wartime be admitted and released into the United States.

Second, it is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our Nation gathers intelligence, and what that intelligence is. In the terrorism case I mentioned a minute ago, the government was required by law to turn over to the defense a list of unindicted co-conspirators - a list that included Osama bin Laden. This was in 1995, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden's hands in Khartoum, tipping him off to the fact that the United States Government was aware not only of him but also of the identity of many of his co-conspirators. We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets, and we can do so in a way that is fair to both the Government and detainees alike.

Third, Congress should make clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes. Twenty individuals have already been charged, and many more may be charged in the upcoming months. Last Thursday, we received a favorable decision from a federal court rejecting the effort of a detainee to block his military commission trial from going forward, but detainees will inevitably file further court challenges in an effort to delay these proceedings. Americans charged with crimes in our courts must wait until after their trials and appeals are finished before they can seek habeas relief. So should alien enemy combatants. Congress can and should reaffirm that habeas review for those combatants must await the outcome of their trials. The victims of the September 11th terrorist attacks should not have to wait any longer to see those who stand accused face trial.

Fourth, any legislation should acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans-soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion. And Congress should adopt rules that strike a reasonable balance between the detainees' rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand. In other words, Congress should accept the Supreme Court's explicit invitation to make these proceedings, in a word repeated often in the Boumediene decision, practical-that is, proceedings adapted to the real world we live in, not the ideal world we wish we lived in.

Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict. And they must ensure that court proceedings are not permitted to interfere with the mission of our armed forces. Our soldiers fighting the War on Terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings; affidavits, prepared after battlefield activities have ceased, should be enough.

And military personnel should not be required to risk their lives to create the sort of arrest reports and chain-of-custody reports that are used, under very different circumstances, by ordinary law enforcement officers in the United States. Battlefields are not an environment where such reports can be generated without substantial risk to American lives. As one editorialist put it, this is not CSI Kandahar. Federal courts have never treated habeas corpus as demanding full-dress trials, even in ordinary criminal cases, and it would be particularly unwise to do so here given the grave national security concerns I have discussed.

Sixth and finally, because of the significant resource constraints on the Government's ability to defend the hundreds of habeas cases proceeding in the district courts, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. One unintended consequence of the Supreme Court's decision in Boumediene is that detainees now have two separate, and redundant, procedures to challenge their detention, one under the Detainee Treatment Act and the other under the Constitution. Congress should eliminate statutory judicial review under the Detainee Treatment Act, and it should reaffirm its previous decision to eliminate other burdensome litigation not required by the Constitution, such as challenges to conditions of confinement or transfers out of United States custody.

Here I must make explicit, and perhaps risk reiterating, a point I would hope was obvious from the discussion so far. We are talking here about habeas corpus proceedings, not about criminal trials of the sort that some but not all of the detainees at Guantanamo Bay may face. Some people have argued that we should either charge the detainees we are holding at Guantanamo with crimes, or release them. We can and we have charged some detainees with war crimes. These proceedings are exceptionally important, and I referred to them earlier.

But to suggest that the government must charge detainees with crimes or release them is to seriously misunderstand the principal reasons why we detain enemy combatants in the first place: it has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers. The Department of Defense and the Department of State have worked together to release those whom we believe can be transferred to a third country, consistent with the safety of our citizens and our military personnel abroad, and with our humanitarian commitments; of the 775 people who have been detained at Guantanamo, only about one-third remain. The fact that we have not charged all of those remaining at Guantanamo with crimes should not be regarded as a fair criticism of our detention policies; rather, it reflects the fundamental reality that these individuals were captured in an armed conflict, not in a police raid.

Boy, this guy really was Giuliani's good buddy, wasn't he?

It's this authoritarian mentality, this shameful lying about how we picked up random brown people in Afghanistan and locked them up forever to hide their innocence, that has put us in the position that Great Britain won't extradite prisoners to us for fear that we will torture them. Mukasey is a total scumbag, and he's asking for the whole enchilada - essentially a new war authorization with Al Qaeda (even though we ditched them to fight in Iraq), eliminating the very habeas rights that the Supreme Court explicitly gave to prisoners AFTER CONGRESS PASSED A LAW THE FIRST TIME, and a host of other ridiculous requests, which would have the effect of allowing the President to declare anyone a terrorist and holding them incommunicado forever.

Harry Reid, Patrick Leahy and Russ Feingold (whose signature I now have on a T-shirt as a result of coming in second in the Netroots Nation pub quiz) responded to this today. Reid and Leahy's statements averred that there isn't enough time to comply with Mukasey. But Feingold, as usual, told the truth.

“The Attorney General’s comments today appeared to be an attempt to create an election-year security issue where there isn’t one. Our federal courts are capable of handling these cases, and no dangerous detainees held at Guantanamo will be released anytime soon. By repeatedly mishandling these cases, the administration has delayed justice from being served. If congressional action is needed to clean up the mess the administration created at Guantanamo, it should be taken alongside a new administration that doesn’t have such contempt for the rule of law.”

In other words, the Administration never did the work, waited until the last minute, and now wants to fearmonger their way into entirely new rules for detaining and charging the prisoners at Guantanamo. The reason they want quick legislative action is to stop the court from its march toward justice, which would prove them to be incompetent and dangerous (one of the judges, Royce Lamberth, was unsparing in his remarks today). But the real reason is to find a political issue, scare the bejeezus out of everyone about it, and expand executive power by using the elections as a fulcrum point. Democrats ought not to be stupid enough to fall for this again, but I put nothing past them.

Oddly enough, Mukasey is appearing on Capitol Hill again Wednesday, so lawmakers can give him an earful about this if they wished.

All In The Timing

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 has to be numerology or something.

Mute Button

Via Digby, bmaz at emptywheel writes about Khalid Sheikh Mohammed basically playing ringleader and bullying his fellow detainees into ditching their lawyers and becoming martyrs, which the government was all too happy to see happen, since those Gitmo defense lawyers have been effective advocates and effectively our only chance to determine the extent of the horrors practiced upon those detainees. There's more about that in this WaPo article.

KSM also denounced the US Constitution for allowing same-sex marriage, which should create a nice little jig for the religious right to dance around. He also said this:

Mohammed continued: “We have been five years under torturing,” he said, and yet are being told to listen to American attorneys they’ve barely met. “All of this has been taken under torturing, and after torturing they transfer us to Inquisitionland in Guantanamo.”

“I hope you can reconcile your concerns” about his religious duty with the issues involved in self-representation, Kohlmann said.

“You will continue now to the end, to the plea guilty?” Mohammed, more eager than impatient.

“Yes,” the judge said.

But I'm not entirely sure how that WSJ reporter heard it, because the entire trial was tape delayed for journalists.

Mohammed appeared to have equal disdain for the process, but he only briefly mentioned his "torturing" at the hands of U.S. officials, something he acknowledged he was warned not to mention in open court, lest a security official hit a button muting the audio to observers in the courtroom and at a media center nearby. That button was pushed at least a few times on Thursday when detainees appeared to discuss elements of their early captivity in secret facilities or the way they were treated.

"All of this has been taken under torturing," Mohammed said. "Then after torturing, they transfer us to Inquisition Land here at Guantanamo, and you tell everyone to sit down, sit down."

I'm sure the muting out of the circumstances of the torture was entirely for our protection. And national security reasons, of course. Those interrogation techniques were vital to protect the nation, after all, but mustn't be remarked upon in public. Otherwise someone might remember them.

That's some Orwellian shit right there.

The September 11 Surprise

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.