Discourse.net

Gitmo In America

Just plopped into my mailbox:

New Military Documents Reveal Unlawful Guantánamo Procedures Were Also Applied On American Soil

According to newly released military documents, the Navy applied lawless Guantánamo protocols in detention facilities on American soil. The documents, which include regular emails between brig officers and others in the chain of command, uncover new details of the detention and interrogation of two U.S. citizens and a legal resident – Yaser Hamdi, Jose Padilla and Ali al-Marri – at naval brigs in Virginia and South Carolina.

The documents were obtained under the Freedom of Information Act by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School and the American Civil Liberties Union.

According to the documents, Navy officers doubted the wisdom of applying Guantánamo rules on American soil. In particular, officers expressed grave concern over the effects of the solitary confinement imposed upon the three men detained at the brigs, a practice that was considered to be even more extreme than the isolation imposed at Guantánamo. Navy officers also exhibited frustration with the Defense Department’s unwillingness to provide the detainees with access to legal counsel or any information about their fates. The documents clearly show that the standard operating procedure developed for Guantánamo Bay governed every aspect of detentions at the two bases inside the United States. Though Navy personnel tried several times to improve the harsh conditions under which Hamdi, Padilla and al-Marri were detained, senior Defense Department officials repeatedly denied the requests.

The press release

The newly released documents

The Guantánamo Standard Operating Procedure

More on Gitmo Prosecutor Resigns (UPDATED)

A few days ago I posted ACLU: Gitmo Prosecutor Resigns In Protest. We have more details and further developments now, once again via the ACLU, at Honor Bound.

Not a pretty sight. If there’s any honor here, it’s with the JAGs.

Update: Read the full, sworn, statement by LTC Darrel J. Vandeveld.

ACLU: Gitmo Prosecutor Resigns In Protest

via ACLU Blog: Because Freedom Can’t Blog Itself: Official Blog of the American Civil Liberties Union [link fixed]:

We learned late today that Army Lieutenant Colonel Darrel Vandeveld, the lead prosecutor in the military commissions case against Mohammed Jawad, has resigned in protest because the prosecution team was not providing the defense evidence that could indicate Jawad’s innocence. Jawad was a teenager when he was captured in Afghanistan and he’s one of the two youngest prisoners at Guantánamo.

I’ve said it before and will say it again: the JAGs are the heroes of the “war against terror”.

IntLawGrrls Compare Party Platforms on Torture, Gitmo

IntLawGrrls: A Tale of 2 Platforms is a comparison of the two parties’ platforms on the issues of torture and the Guantanamo Bay prison camp.

I know that when a candidate is weak in his own party like McCain, or faces a powerful minority like Obama did with Clinton, platforms often are at least as much a reflection of the party activists than of the candidates’ own views, but even so it’s pretty telling.

How to Close Gitmo

Hot off the press: Human Rights First's new plan on closing Guantanamo. "How to Close Guantanamo: Blueprint for the Next Administration". HRF offers a step-by-step strategy for closing Gitmo, designed to minimizes risk and ensure federal court prosecutions where appropriate.

Zealous Advocacy

This may epitomize zealous advocacy: Covington Partner Demonstrates Treatment of Detainees.

These are not normal times, and they call for unusual responses.

The Snark IS a Boojum

The DC Circuit has now issued a redacted version of Judge Garland’s opinion for the Court in Parhat v. Gates. It’s worth a read.

Notably, the Court accepts the government’s view of its own powers and of the standard of proof required in a Combatant Status Review Tribunal (CSRT) and nonetheless holds that the government failed to produce meaningful evidence to support its claim that Parhat and other Uighers were in a group “associated” with al Qaida, or the Taliban.

The decision points to the very tentative (and unsourced!) language in the documents proferred to the CSTR

… the principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions — often in haec verba — about activities undertaken by ETIM, and about that organization’s relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having “reportedly” occurred, as being “said to” or “reported to” have happened, and as things that “may” be true or are “suspected of” having taken place. But in virtually every instance, the documents do not say who “reported” or “said” or “suspected” those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the Tribunal could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.

…

Insistence that the Tribunal and court have an opportunity to assess the reliability of the record evidence is not simply a theoretical exercise. Parhat contends that the ultimate source of key assertions in the four intelligence documents is the government of the People’s Republic of China, and he offers substantial support for that contention. Parhat further maintains that Chinese reporting on the subject of the Uighurs cannot be regarded as objective, and offers substantial support for that proposition as well.

…

The government does not dispute that DOD’s standards and procedures require that the CSRT be able to assess the reliability of the record evidence. See Unclassified Oral Arg. Tr. 39. It argues, however, that the Tribunal was able to do so here — for two reasons.

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs. Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers. Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.

(footnotes removed)

This was a very mixed panel, including arch-conservative Chief Judge Sentelle. When judges from across the spectrum are quoting Lewis Carrol to the government, there’s a sign that the jig is up.

An Extraordinary Statement About Torture, Honor, Law, and Country

I’ve said many times before that the JAGs are heroes of the post-9/11 military. Here’s another extraordinary example of this: the closing argument of an Air Force Major, David J. R. Frakt, in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008) in a ‘combat status review tribunal’ [Note 6/24/08: commentator mremer says below that this was a merits hearing, not a CSRT, and based on this aclu blog post, I think he’s right] held at Guantánamo. (Transcript via the ACLU.)

There ought be be a medal for this sort of princpled powerful advocacy in service to the nation. Please read it. I’ve reprinted the full text below to make it easier. (If you care — I’m not sure how relevant it is under the circumstances — you can learn more about the facts of the Mohamed Jawad case from FreeDetainees.org.)

Update: Here’s some background on Major and Professor David Frakt.

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Major David J. R. Frakt’s Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008)

On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war…al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment… As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.

The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of “to the extent appropriate and consistent with military necessity” the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a “global war,” it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was “Yes.”

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by our even our staunchest allies in the war on terror, but steadfastly defended by the administration.

If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on Dec 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion. I’m sure Phillipe Sands would be honored to have his book included in the record of this commission.

Eventually, cooler and wiser heads started to inject some rationality into the treatment of the Guantanamo detainees. Unsung heroes like Alberto Mora, Navy General Counsel, and Admiral Jane Dalton, and the service TJAGs Gen Rives, Gen Romig, fought vigorously for the restoration of Geneva. But it ultimately took the intervention of the Supreme Court to restore the rule of law to Guantanamo. The Court intervened and made it clear that the Geneva Conventions did apply to detainees at Guantanamo, and that they did have the right to habeas corpus, a right that Congress has twice, unsuccessfully, attempted to take away. This fight to restore the rule of law took time, years in fact, in which the detainees of Guantanamo continued to suffer indignity and inhumanity. It was not until July 2006 when the Deputy Secretary of Defense Gordon England issued a memorandum stating that “common Article 3 of the Geneva Convention applies as a matter of law“ to the treatment of detainees held by the Department of Defense, and that the “humane treatment [is] the overarching requirement of Common Article 3.” Unfortunately, by then, the damage had already been done, both to the detainees and to the reputation of the United States as a law-abiding country.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence.

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did, they abandoned the tried and true and lawful methods of Army Field Manual 34-52 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly.

The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment. Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days. While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It’s the right thing to do.” Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia. The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so.

Honor, Justice AWOL in Today's Pentagon

Triumph of Newspeak at the Pentagon: telling the truth is considered dishonorable behavior.

Colonel Says Speaking Out Cost a Medal

[The former chief military prosecutor for terrorism trials at Guantanamo Bay, Air Force Col. Morris] Davis’s dispute with Air Force Brig. Gen. Thomas W. Hartmann resulted in a military judge disqualifying Hartmann in the case of Salim Ahmed Hamdan — an action that has led other military defense lawyers to file similar motions in cases against five men accused of taking part in the conspiracy surrounding the Sept. 11, 2001, attacks. An e-mail Davis wrote to defense lawyers on Tuesday, in which he said he would not cooperate in future cases, was released as part of such a motion yesterday.

Davis wrote that Pentagon officials notified him that he did “not serve honorably” as top prosecutor and would be denied [a] medal. Davis said he fears other reprisals before his scheduled retirement this year, despite a military judge’s order that no one who testified on the matter face adverse actions.

Meanwhile, the Pentagon also dismissed a judge in a different Guantanamo trial, apparently because he was not compliant enough with prosecution demands that the proceedings begin before the November election. Installing a new judge will undoubtedly increase the risk that the whole proceeding will look like a show trial, but at least the show may start on schedule.

Isn't It Time to Stop (Guantanamo Dept.)

(via The Guantanamo Blog)

Close Guantanamo Now

The ACLU has the right answer for the problem of the Guantanamo camp: Close Guantanamo and outlaw indefinite detention.

One way to achieve this would be to pass the “Guantanamo Bay Detention Facility Closure Act of 2007,” S.1469. The bill, introduced by Senator Tom Harkin, would close the facility within 120 days and send charged or sentenced detainees to the military’s maximum security prison at Fort Leavenworth. The remaining detainees would be sent to their home countries or other countries that will not torture or abuse them.

I’m told that all the major Presidential candidates have taken a position on Guantanamo. Sen. Obama regularly calls to close Guantanamo and restore habeas corpus, and Sen. Clinton often says something similar. As yet, however, neither Sens. Clinton, Obama nor McCain have not signed on as co-sponsors of S. 1469. (Clinton has signed on to a Feinstein bill that closes Guantanamo. Unsurprisingly, given the author, the billcreates new problems by authorizing indefinite detention without charge.)

The ACLU is making today “Close Guantanamo Day”. Below I reprint their press release on it. There will also be a “Rush Hour Vigil” this afternoon at 5pm near South Com. I won’t be able to make it, but Linda has details. And there are other events around the country.

I still hold to what I wrote in October 2003, in Guantanamo: Our Collective Shame:

As citizens we all bear a degree of collective responsibility for what our government does in our name. That responsibility is greater when we are or should be on notice. And thus, we are all responsible for what is happening in Guantanamo detention camps.

We are collectively responsible for what is happening in Camp Delta and Camp Iguana (the latter holds children). It is, or it should be, a matter of shame that our government chose to confine the Camp Delta prisoners in solitary, indefinitely, without news or the prospect of having their cases determined in the foreseeable future and where the policy is “We interrogate seven days a week, 24 hours a day.” (Interrogations, however, are limited [sic] “to no more than 16 straight hours” straight at one go.) There is no right to speedy trial (or other Geneva-convention-style hearing), or even to a trial. If and when trials do begin, there will be no right to to a proper attorney-client relationship even though the trials can end in the death penalty. Nor will there be a right to appeal the initial tribunal’s verdict to a neutral court staffed by judges with the neutrality of perspective that comes from life tenure.

As of a year ago, the BBC was reporting at least 30 suicide attempts out of a prison population of 600. While it’s possible that there is something about the population of detainees that predisposes them to suicide attempts, it’s also quite possible that it’s something about the conditions and, if so, conditions that bad arguably amount to illegal torture under international law. On the other hand, the rate of suicide attempts may be down as a recent CBS report put the total at 32.

This rich nation of ours can afford to give each detainee a first class fair trial, if it wanted to. In so doing it would send a healthy message about our values to the world. The decision not do so is a choice. By making that choice the Administration is sending a terrible message to the world. It’s also a really lousy precedent.

I also believe that it’s constitutionally wrong. Our government is, or should be, an entity subject to the Constitution. I do not read that document to allow our government to act lawlessly and without review. And certainly not indefinitely.

…

A government sure of itself, and confident of the rightness of its actions, would not hide the detainees in legal limbo. To do so suggests a meanness of spirit at best, a tendency to lawlessness and something to hide at worst, and a tin ear to the world’s opinion at all times.

We in the US—indeed all those in the Coalition of the willing —are responsible for this. If the courts will not take jurisdiction over events at Guantanamo, then we must demand that all the prisoners held there be moved to a place where ordinary civilized rules apply.

Cf. Kos, After 2190 Days, This Festering Abomination Persists

Text of ACLU Press Release:

Guantanamo Bay: Six Years and Counting… Detention facility remains a stain on American values; ACLU urges Congress to close GITMO

FOR IMMEDIATE RELEASE: January 10, 2008 Contact: Matthew Allee or Liz Rose, (202) 675-2312, media@dcaclu.org

Washington, DC - Tomorrow, January 11, 2008, marks six years since men and boys from around the world were first shipped off to the Guantanamo Bay detention facility, locked up and often abused by the American government. Since that dark day in recent American history, more than 700 people have been detained without due process and not a single trial has been completed. The American Civil Liberties Union reiterates its call to Congress to shut down the detention facility immediately and restore due process rights for those being held.

“After six years of holding these individuals without charge, Guantanamo Bay can be viewed as nothing short of an American dungeon,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “Detainees have been locked up and our government has thrown away the keys, and with it the basic values we hold dear. America does not stand for indefinite detention without charge and the time for Guantanamo Bay to be closed is long overdue.”

Legislation has been introduced in Congress that would close the detention facility and restore due process rights to those being held at Guantanamo. Senator Tom Harkin (D-IA) introduced S. 1469, the Guantanamo Bay Detention Facility Closure Act of 2007. The bill requires the president to close the facility within 120 days of enactment - during which time detainees would be charged and sent to either the United States Disciplinary Barracks at Ft. Leavenworth, KS, or transferred to another country that will not torture or abuse them.

“Senator Harkin worked diligently to craft legislation that properly shuts down Guantanamo Bay and ends the indefinite detention of those being held. This is a major step in restoring the American image as a beacon of freedom in the world,” said Christopher Anders, legislative counsel for the ACLU. “Senators Clinton, McCain and Obama have all spoken forcefully about shutting down the detention facility during their presidential campaigns but none have yet signed on to Senator Harkin’s legislation. Talk on the campaign trail comes easy, but signing on to the legislation would be a real commitment to shutting Guantanamo Bay.”

The ACLU is encouraging demonstrations in cities across America and asking activists to wear orange in protest. For more information on the Guantanamo protests visit: http://www.aclu.org/closeguantanamo.

For more information on the Harkin bill visit: http://thomas.loc.gov/cgi-bin/query/z?c110:S.1469:

It's Starting to Hit the Fan

Like a dam weakening, the little trickle of news about misdeeds at Guantanamo and in CIA torture labs is becoming a bigger trickle.

• ABC News, CIA Spy Calls Waterboarding Necessary But Torture (but see Kevin Drum)
• AWOL Military Justice: Morris D. Davis explains why he resigned as Chief Prosecutor at Guantanamo. (It’s because they put a torture advocate above him in the chain of command). And although Congress would like him to testify, the Pentagon has refused to let him. (Will Congress use the power of the purse to force testimony? Unlikely)
• Marty Lederman explains why Congress’s intelligence oversight desperately needs an overhaul
• Independent Online Edition, CIA photos ‘show UK Guantanamo detainee was tortured’

Can we hope for a flood of revelations now?

Bonus: Emily Bazelon and Dahlia Lithwick, If the CIA hadn’t destroyed those tapes, what would be different?

Romney's Orwellian View of Freedom

I used to say that I could see Romney as the least bad of the Republican candidates. Surely no principles was better than bad ones?

I may have to reconsider. On the one matter where one has to assume he is least likely to lie to us, the place of religion in public life, former Gov. Romney has some very strange views, such as: “Freedom requires religion just as religion requires freedom.”

The clearest statement I’ve seen of the problem may be slacktivist, Mitt vs. atheists, martyrs,

Let’s deal with the latter assertion first: “religion requires freedom.” There are far too many counter-examples for this to be true. Think of China, where the government denies religious freedom to millions of Christians and Falun Gong adherents and Tibetan Buddhists. Yet despite this lack of freedom, despite this active oppression — and, in a way, in response to this oppression — these faiths are all thriving. ….

“Freedom requires religion,” Romney said. Had he said, “Freedom requires religious freedom,” then I would agree, absolutely. Try to imagine if you can a society in which people were denied this most intimate of freedoms, the freedom of conscience, yet remained in all other respects free. Such a thing is impossible. This is part of the genius of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Take away any one of those freedoms and you take away the others as well. Each of those freedoms requires the others.

But Romney did not say that freedom requires religious freedom. He said, “Freedom requires religion.” And that’s a contradictory statement — a very different, and very frightening, thing.

If freedom requires religion, then the a-religious and irreligious, the non-religious and un-religious are the enemies of freedom. Romney believes, in other words, that atheism is incompatible with freedom. Whatever it is he means by “religious liberty,” he does not believe it can safely be applied to atheists.

Don’t get me wrong: I have no problem at all with devout candidates. I respect people who want to actualize their faith — just as long as in their public life they put the First Amendment first, and don’t try any back-door establishment of religion. Thus, I respect, but disagree with, people who say abortion is murder and wish to change the law to protect what they see as unborn people. I also disagree pretty strongly with people who want use state power to enforce their versions of morality, but I often do understand where they are coming from — even though I think that many of these efforts have serious constitutional difficulties and wish they were much more sensitive to these issues.

I don’t respect people who want to create special programs whose real purpose is to funnel money to churches (although I don’t mind at all having churches compete on a level playing field for federal funds so long as they observe the rules that apply to all recipients of federal money).

But I also respect (and would rather vote for) people whose faith — be it religious or secular — leaves more scope for individual choice and autonomy on most questions of morality.

Mitt Romney’s position that atheists are or should be second-class citizens hearkens back to an old American idea, mostly abandoned in the Enlightenment period, that the irreligious were fundamentally untrustworthy because without a fear of Hell they could not be trusted to keep their oaths.

It’s deeply depressing to consider that a major GOP candidate who is 200 years behind the times may still seem modern when part of a field that seems anxious to compete on who is more for torture of more detainees, and who has the cruelest plan for deporting and deterring undocumented workers.

Oh, wait. He’s campaigning as just as much a troglodyte as most of the others. Romney thinks we should double the size of the Guantanamo prison camp. I suppose that since Romney thinks Muslims are unfit for top government jobs this shouldn’t be totally surprising.

Race to the bottom. Dragging us down with it.

Oral Argument in Boumediene v. Bush

Thanks to Oyez, you can hear (and read along with) the Boumediene v. Bush, U.S. Supreme Court Oral Argument.

It does not increase my respect for the Chief Justice. But it reflects well on both advocates, especially Seth Waxman.

Grand Jury Brooklyn: Due Process, from NYC to CIA

A Brooklyn grand jury has something to teach us about the rule of law — and about the CIA’s secret prisons and Guantanamo too.

The author of the essay that follows, John Sifton, is an attorney and private investigator, and the director of One World Research, an investigation firm specializing in human rights and public interest cases. He posted the essay that follows to a mailing list I belong to. I liked it and asked him if I could link to it, but it turned out that it hasn’t been published anywhere. John has graciously allowed me to publish it here for the first time.

---

Grand Jury Brooklyn: Due Process, from NYC to CIA

By John Sifton

A few months ago, in the waning days of summer, I experienced the privilege-and the banality-of serving on a criminal grand jury in Brooklyn.

For two weeks, sworn to secrecy, my fellow jurors and I heard indictments in a catalog of felony cases: murder, assault, sexual abuse, drug and weapon possession, robbery, larceny, and sundry other violations of the New York Penal Code. We listened to testimony from victims, witnesses, police officers, and alleged perpetrators and alibi-providers, and we deliberated on whether to issue indictments. It was an edifying ordeal.

My jury of 23 was a classic Brooklyn bevy: various ethnicities, ages, races, and backgrounds. Our group included subway train drivers, sanitation workers, teachers, and various others from across the socio-economic ladder (but gravitating toward the lower end). The core of the jury was comprised of women, 18 in total: eleven black, two white, two Hispanic (one old and one young), a Russian matriarch, a two young woman of East Asian and South Asian descent. The remaining five males included three black men (including the foreman), me (“the white guy”) and a very young Israeli with dual citizenship who had just finished military service guarding border posts on the West Bank. During the two weeks of service, some interesting and unexpected cliques formed.

How I came to sit on this jury was a matter of controversy to my friends and employers.

“You couldn’t get out of it?” friends asked. Colleagues were also incredulous. I am a human rights lawyer and a private investigator and I work on a lot of cases involving detainees at Guantanamo Bay or secret CIA prisons-facilities in which grand juries are not used. Few believed that prosecutors allowed me to serve. Others were amazed that I didn’t lie outright in order to avoid service, as others apparently have. (Various lies suggested: “I’m a Quaker, etc.” “I’m a vociferous racist; I just can’t be impartial,” and “I typically have to urinate every five to ten minutes.”)

The truth is, it isn’t easy to get out of grand jury service. Grand juries aren’t like trial juries. Unlike trial juries, there is no adversarial process, no judges and no lawyers for the defendants; the only officials present are Assistant District Attorneys (ADAs), who run the process with a subtle but steely fist. The ADAs aren’t as anxious about particular jurors as attorneys might be with trial juries. Unlike with a trial jury, votes are not as momentous, and a single juror is not as vital.

After all, grand juries do not decide guilt. Instead, they vote to indict people, and the voting need not be unanimous, nor do those who vote to indict need to be convinced beyond a reasonable doubt that the accused committed a crime. All that is needed for an indictment is that a majority of the jury, 12 out of 23, believe that it is reasonably likely that the person accused of a crime actually committed it, based on the evidence presented. Twelve Angry Men, it’s not. A single Henry Fonda character, or even a vacillating Hamlet, can’t screw up an indictment.

So there was little chance of escape. In the initial excusal process, wardens excuse non-working parents with children under five, doctors, non-English speakers, certain small business owners, and people with serious health problems. Others postpone their service temporarily, as I did on three previous occasions. But there are few hopes beyond this. Once you-the hapless citizen of Brooklyn-receive your summons, you’re snagged in a net from which extrication is impossible. If you’re a citizen, have a pulse, and live in Brooklyn, you’re going to be chosen. (And if you’re not chosen-say, because the juries that day are filled-they’ll call you back a few weeks later when they do need you.)

* * * * *
What happens on a Grand Jury? I am forbidden by law to write about the details, as jurors are sworn to secrecy about the cases presented. But to generalize permissibly, the process goes like this on any given day:

An ADA walks in, closes the door, and says, “Good morning ladies and gentlemen of the Grand Jury.” To which some of the chipper respond, “Good morning!”

The prosecutor then proceeds through a set of formalities: “Mr. Foreperson: is there a quorum present?” (The answer is always “Yes.” A quorum is 16 people, and the prosecutor doesn’t come into the room unless a quorum is there.)

“Let the record reflect that there is. Ladies and gentlemen of the grand jury, today I will be presenting you with evidence in the case of the People of New York vs. [the name of the perpetrator]… . At the conclusion of this case I hope to present you with charges for assault and related offenses [or homicide, reckless endangerment, sexual abuse, possession of a firearm, or some other offense]. I will now call Officer O’Sullivan.”

We would then hear from police officers, some of them undercover officers who looked, convincingly, like most of the criminal defendants. Often we heard from the victims too: bodega owners who were robbed, tenants who were accosted by landlords, old ladies whose purses were snatched-a parade of men and women who, for various economic, ethnic, or emotional reasons, had been shot, stabbed, punched, pushed down stairs, or hit over the head with heavy objects.

For some cases, a defendant might also take the stand, in his or her defense. The gist of their testimony: “It didn’t happen the way you think.” My fellow jurors appeared to be particularly swayed if defendants broke down and cried while testifying-if they did, we might return a dismissal of charges. It would be hard to cry on demand, if you were lying, we figured.

The proceedings were often uncomfortable. After testimony was given, the prosecutor would excuse a witness and then ask us whether we wanted to ask the witness any particular follow-up questions. (Jurors are not allowed to question witnesses directly.) Some jurors asked for important questions, for instance: “Can you ask Ms. Jones how far she was from Mr. Taylor when he handed the bag of powdery white substance to Mr. Jenkins?” But some jurors requested exceedingly irrelevant or simply improper questions, or even started deliberating with the district attorney still present: “So, what I want to know is, how can we trust this undercover police officer? How do we know he isn’t just trying to put this guy in jail? He has all those tattoos.” Or: “He just seems untrustworthy to me.” One juror seemed to fashion herself an amateur sleuth of some kind, and was a conspiracy theorist: she simply doubted anything and everything that anyone said.

During our breaks, we ended up talking a lot. We asked the train driver about working in the subway. (“Have you ever run anyone over?”) School teachers complained about the Board of Education. The Israeli kid, a modern Orthodox, answered dozens of questions from others about Judaism and Israel (“Why do those guys [Hasidim] wear furry hats?” and “How do bald people keep the thing [pointing to the yarmulke] on their head?”)

We also talked about local politics, gossip (intriguingly intricate critiques of Foxy Brown and the various girlfriends of 50 Cent), television shows, the war in Iraq, and other issues of our day (steroid use, polygamy). We cracked jokes and stared into space, and pondered society and the meaning of “due process of law.” I also dropped catalytic comments starting discussions about how our jury process compared to what terrorism suspects face in secret CIA detention facilities, or at Guantanamo Bay (more on this below).

* * * * *
The deliberations were even more painful. When the time came, the prosecutor would instruct us on the law, and then leave the room with the court reporter, and we would be left alone. After the foreman reviewed the charges, our discussion would begin.

Often the issue before us was whether a certain alleged crime, assault for instance, could also amount to a higher charge, such as aggravated assault. The issues were difficult-was the defendant attempting to kill the defendant, just hurt him, or was he defending himself? We would try to reason with each other, we argued, we even yelled at each other. There was a lot of machismo, especially among the women: “Don’t start with me sister! You don’t want me to go there!” That sort of thing.

Eventually we would vote, and issue indictments, or not. In many cases, we returned at least some indictments, if only because many of the cases were simple and the evidence direct. (One particular ADA, a tall and handsome black man with impeccable suits, had it so easy with the women that I started teasing some of them about it. One juror said, “I just can’t concentrate when that man is in the room. He is just too … hot. Hot!”)

But sometimes, ADAs stretched too far on their charges, and we called them out on it. For instance, during the first week, one ADA tried to make us indict three separate people in a specific crime, on identical charges (I can’t go into specifics about the particular crime, but it involved a specific person committing a particular crime against a specific person). Only one person actually committed the main criminal act, though the others could legally be charged if they intended to aid the primary actor. Since we heard no evidence that the other two did intend to aid the primary actor, we refused to indict the two who aided him (though we did indict the primary actor). Interestingly, after we dismissed the charges against the two non-primary actors, our mood was bashful, but we were proud. Most of the cases typically resulted in an indictment, and the process sometimes took on a factory assembly line resemblance. But in that case, instead of being steamrolled through the process, we’d actually done something to change the course of the proceedings. We meant something.

* * * * *
Which brings us to the existential issue-and to a discussion about secret CIA jails and Guantanamo Bay. Why was this jury convened? What was the purpose of this exercise-the State of New York gathering together 23 random citizens to decide whether the police and District Attorney’s office had gathered legally sufficient evidence to indict fellow human beings, and have them stand trial for their alleged crimes?

Well, it’s simple: the whole process is mandated by the U.S. Constitution and the Constitution of the State of New York. As the 5th Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… . nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The same is applicable in New York under Article 1, Sec. 6 of the Constitution of New York. These provisions go back hundreds of years, even to New Amsterdam. They serve as basic guarantees at the center of our criminal justice system: namely, that the jailing of suspected criminals must be justified before an independent body representing the polity-a set of people representing society at large-and that the justification for detention must be part of an established process of law.

Of course, as we on the grand jury came to realize, it’s a busy system: Hearing cases, we came to appreciate the fact that all over Brooklyn, and all over the United States, literally every hour of every day, people are committing crimes.

Some of the crimes that are occurring in America are mundane: the drug dealer selling narcotics, the drunk driving a car. And some crimes are horrifying: a man selling pictures of his stepdaughter over the internet, or a group of white supremacists beating up a Sikh gas station attendant. And other crimes are very complex: A grafter setting up a string of bogus companies in various countries to launder money for criminals engaged in human trafficking, or even worse: a transnational radical armed group plotting and raising money to carry out violent attacks on civilian and military targets in the United States and abroad. As jurors, we came to see a sample of this sheer scope of criminality in the United States.

We also came to appreciate the scope of the system created to manage it. Americans rarely get to see, up close, the process in which our local, state, and federal governments take suspected perpetrators into custody and deprive them of their liberty, temporarily at first, while they are charged with a crime and processed, and then permanently if they are found by trial to have actually committed crimes. Of course, it’s a flawed process-a deeply flawed process that accentuates the inequalities of our society. Nevertheless, serving on a jury you are made to remember-by the ritual of the courtroom-that the process is still that: a process. And the contours of this process are defined by law and established practice (hence, the concept of due process). Moreover, this process is ultimately subject to checks and balances. The police, as prime detainers and deniers of liberty, are subject to review by the judiciary and the polity at large.

Yet, as one of my fellow jurors pointed out during a break: “There ain’t nothing like this for the guys at Guantanamo Bay.” Indeed, nor for terrorism suspects in secret CIA jails.

So, some of us came to ask ourselves-why not?

During breaks, I framed the question to some others: Why is the Bush administration so hostile to putting high value terrorism suspects into a regular criminal law system? Why couldn’t a jury just like us-our jury-handle it? If we, a predominately minority and female-dominated jury in Brooklyn, one of the most liberal places in the United States, voted to indict almost everyone presented to us, why would the Bush administration be so afraid of putting terrorism suspects in civilian court?

All of the administration’s arguments about Guantanamo and CIA prisons-about practicality, guarding classified intelligence gathering secrets, and security-all of these have analogies with the criminal law cases we heard on our grand jury.

As we came to understand, police worry about practicalities too, the secrecy around their undercover officers and informants, and the security of witnesses and juries. “The stakes” can’t be the issue either: ordinary criminals in the United States kill and injure far more people than terrorists.

I don’t mean to suggest we were a perfect jury. We were not. Some of the jurors among us struck me as hopelessly illogical. But at the end of the day, we made good decisions. It was fitting and proper that the State of New York and local government of Brooklyn trusted us to listen to secret information from police, and then deliberate and make important decisions about how to deal with criminal suspects.

Why the federal government can’t trust citizens to do the same with high level terrorism suspects-this, understandably, was a subject we never settled.

© 2007 John Sifton

Banned on Fox

Here’s a commercial that the Fox News network refused to air.

Click here if you cannot see the clip.

Given it’s only a so-so commercial, it’s hard to see what they were so scared of. Could it be the figure at the end? Or is it the source, the Center for Constitutional Rights?

In Which the System Chews Up and Spits Out an Honest Man

One Fewer Good Man.

Why do we have to lose straight-arrow Lt. Col. Colby Vokey, but keep the odious Col. Boylan?

Local PD Representing Two Guantanamo Detainees

Nice article in the Daily Business Review on assistant federal public defender Paul Rashkind, who is representing two persons being held at Guantanamo Bay.

Collective Responsibiltiy

Grad Student Madness: Can There be Collective Shame? takes issue, inter alia, with a post of mine from 2003, Guantanamo: Our Collective Shame.

The author rejects the very idea of collective shame, saying shame is individual,

It seems to me that the nature of shame is that it is not just individual; it’s individualizing. Shame removes us from our fellow men and makes us painfully aware of our isolation in the world. It is, in this sense, experienced in much the same way as the ancients experienced fate. It is ours to carry, if we choose to accept it. It’s also what makes us moral beings,

The author then goes on to reject collective guilt (also personal) and to question collective responsibility:

A group of people can accept collective responsibility for a crime or transgression, even if guilt can only be accepted on an individual basis. But what does collective responsibility mean when the whole nation accepts it? Nearly as little as collective pride, one would guess. For instance- if all of Germany accepts responsibility for the Holocaust, what distinguishes Eichmann from a butcher in Hamburg who really was unaware? And what distinguishes any of us in this era from a torturing guard at Abe Ghraib? Or from al-Quaida, given that we have all failed to prevent al-Quaida’s actions? Is it evident how meaningless this can become?

…

I assume that these collective shaming exercises are intended to inspire us to action, and yet shame is a horrible motivator.

…

And so, I think that something like collective shame cannot exist, nor collective guilt; but perhaps something like collective responsibility is possible. Yet, given that collective responsibility tends to flatten out individual responsibility to a benign gray area, I think the most honest way to respond to transgressions is to assign individual responsibilities, and in turn to accept individual responsibility.

I plead guilty to the charge that a purpose of talking about collective shaming is to “to inspire us to action.” Most of the rest I disagree with.

I think the author misses three aspects of the collective guilt/shame/responsibility idea. (They are closely linked: responsibility leads to guilt and shame.)

#1 When the bad act is by your agent, you share in the responsibility for it. In a democracy, your government is your agent. It acts in your name. You therefore have presumptive responsibility for what it does.

#2 One way to shift that burden is to oppose what is done in your name. Indeed there may be a (moral) duty to do so in extreme cases. To fail to oppose serious known (or knowable) evil is — and this is the key step in the argument — to shoulder a significant and meaningful degree of personal responsibility for it. whether one wants it or not.

#3 Failure to shoulder the burden to oppose should lead to guilt and shame. Whether those are “collective” or “individually applying to everyone” seems to me to be, in the grand scheme of things, a quibble. If some people prefer the second formulation, I’m not about to argue.

#4 Nothing about the above requires one to close one’s eyes to the reality that there are shades of gray, and also black and white. Direct actors are more responsible than passive ones. Eichmann was worse than a Good German who didn’t want to know. The argument neither excuses the Good German, nor suggests, much less requires, that there is an equivalence between the ordinary and the extraordinary. (I leave that for (mis?)readers of Hannah Arendt.)

That is why those among us who know or should know about Guantanamo and about the government’s other torture stations must oppose it, or in failing to do so take on a degree of responsibility for it. For each person that is an individual matter; the collective aspect is that the choice faces each of us, as individuals, not that it faces all of us as components of a mass.

US Government Continues to Blacken Our Names

I’m running out of energy to keep on posting about the judicial horrors perpetrated by this administration. Fortunately, there are others made of sterner stuff.

Have a look at Crooks and Liars, Justice, Guantanamo Style. Sickening stuff.

Habeas Restoration Bill Hangs By a Vote

According to the reliable folks at Firedoglake, the habeas restoration bill is within a vote or two of passage.

If you are represented by any of the following fence-sitters,

Sen. Joe Lieberman (I-CT)
Sen. Ben Nelson (D-NE)
Sen. Chuck Hagel (R-NE)
Sen. Richard Lugar (R-IN)
Sen. Larry Craig (R-ID)
Sen. Susan Collins (R-ME)
Sen. Olympia Snowe (R-ME)
Sen. Norm Coleman (R-MN)
Sen. George Voinavich (R-OH)
Sen. John Sununu (R-NH)
Sen. Mary Landrieu (D-LA)
Sen. Gordon Smith (R-OR)
Sen. Lamar Alexander (R-TN)

please give them a call and encourage them to remove this blot on the rule of law. (Phone numbers and multiple arguments are here.)

Legal Earthquake: US Supreme Court to Rehear Boumediene and Al Odah

This is a big deal.

The US Supreme Court has reversed its previous denial of rehearing in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), two of the leading-edge Guantanamo detainee cases. Some details at SCOTUSblog.

The move required five votes, strongly suggesting that Justice Kennedy may have moved off the fence.

Previously, both he and Justice Stevens had voted against hearing the cases at all, meaning that only three Justices had voted in favor, an insufficient number for the cases to be heard.

But now there are five potential votes to save habeas corpus and uphold the rule of law against executive attempts to detain indefinitely, make up inadequate kangaroo-court-like procedures (and even torture, although that’s not directly at issue in these cases).

The course of justice grinds on slowly… Here’s a quick timeline from the Center for Constitutional Rights:

Al Odah v. United States, filed jointly by CCR, co-counsel Shearman & Sterling LLP, and a number of other law firms in 2004, consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court’s Rasul decision.

The Boumediene appeal, filed by Wilmer Cutler Pickering Hale and Dorr LLP in 2004 and heard with a case brought by Clifford Chance LLP, is on behalf of six Bosnian-Algerian humanitarian workers seized by the U.S. military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention and ordered local authorities to release them.

Case Timeline

Both the Al Odah and Boumediene habeas corpus petitions were filed in July 2004, shortly after the historic Rasul v. Bush Supreme Court decision that affirmed the detainees’ right to challenge their detention.

In January 2005, District Judge Joyce Hens Green held in Al Odah that detainees possess “the fundamental right to due process of law under the Fifth Amendment” and that certain detainees are protected by the Geneva Conventions. U.S. District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were consolidated and appealed to the D.C. Circuit Court of Appeals.

On February 20, 2007, two years after the cases were first appealed, a divided panel of three judges of the D.C. Circuit Court of Appeals ruled 2-1 in the consolidated case that the Guantánamo detainees have no constitutional right to habeas corpus review of their detentions in federal court. Because the court also found the MCA eliminated any statutory right of access to the courts under habeas corpus, it dismissed their cases.

On March 5, 2007, CCR attorneys, along with co-counsel, petitioned the U.S. Supreme Court to review the Court of Appeals decision that dismissed Al Odah and Boumediene and to hear the cases on an expedited schedule. Attorneys submitted an accelerated briefing schedule to ensure that the cases will be heard before the Supreme Court goes on summer recess; otherwise, the question of whether Guantanamo detainees still have the right to challenge their detention through habeas corpus might go unanswered until 2008.

On April 2, 2007, the Supreme Court announced that it would not be hearing the cases of the Guantánamo detainees for the time being. The Court denied the Center for Constitutional Rights (CCR) and co-counsel’s motion to hear the case with three justices dissenting and two issuing a statement that the detainees should exhaust the process set up by the Detainee Treatment Act (DTA).

Today’s reversal overturns that April decision. What has changed since then? The main thing is that it has become increasingly obvious that the procedures being used in the Guantanamo trials are a farce. That comes mostly from the press — what we’ve seen from the DC Circuit is rather a refusal to address that issue. Which may be why the Supreme Court is finally reacting.

Or is the court just getting a little ahead of Mr. Dooley’s predictions?

UPDATE: SCOUTS Blog has the following useful links:

We have posted all of the filings in these cases.

The original petition in Boumediene, filed March 5, is here, and Al Odah is here. Both were denied on April 2, with Justice Breyer authoring a dissent from denial here, and Justice Stevens and Kennedy writing here respecting the denial of cert.

The Boumediene petition for rehearing, filed April 27 and granted today, is here, and Al Odah is here. The Solicitor General’s reply, filed June 19, is here.

For Those Who Came In Late

SCOTUS Blog has a very fine summary of the state of play of US law regarding detainees at Guantanamo and other offshore locations. Primer on detainees’ status now — Part I and Primer on detainees’ status now — Part II.

Recommended.

Boston Public Does Gitmo

Boston Public does — I mean does — Gitmo:

Wow.

What's Doing (Reptiles Dept.)

I just want to thank all the people who have kept the comments lively at The Buck Doesn’t Even Stop By For Visits while I’ve been somewhat distracted by work.

If I know what’s good for me, blogging will be light for the next few days — I have to write an exam and do major surgery to a paper.

The world certainly is doing its best, however, to be very distracting.

For one thing, there’s a good-sized scaly toothed reptile back in the campus lake. I saw about seven eights of it, but not the snout which it had lodged under something at the bank of the lake, so I don’t know if it’s a gator or a croc, but I’d guess gator. The whatever-it-was had beached the front of its face, nose first, only 100 feet or so from the Rathskeller where students were happily boozing it up on a Friday afternoon, but there was a campus cop keeping the passing students from getting too close. He didn’t seem to be enjoying the job, and gave a rather grim smile when I observed that the gator had a police escort.

Previous posts on our toothy friends include Crocodile Reminder, Crocodile Coincidence, What? A Croc?, Croc II !, Cold Front Flushes Out UM Croc, Fair Warning (Alligator Dept.), Who Gets Custody of the Alligator ? and of course Exam Question: Is an Alligator a Deadly Weapon?. It’s not an obsession, really, just a fact of life.

Speaking of reptiles, the DoJ has done another Friday evening document dump.

Speaking of sinking your teeth into things, or maybe it’s man-bites-dog, don’t miss Army Officer Accuses Generals of ‘Intellectual and Moral Failures’ an amazing article about a Lt. Col. attacking his superiors (generically, not by name) in a prestigious army journal for incompetence and dishonesty in their prosecution of the Iraq war and for misleading Congress about it.

“After going into Iraq with too few troops and no coherent plan for postwar stabilization, America’s general officer corps did not accurately portray the intensity of the insurgency to the American public,” he writes. “For reasons that are not yet clear, America’s general officer corps underestimated the strength of the enemy, overestimated the capabilities of Iraq’s government and security forces and failed to provide Congress with an accurate assessment of security conditions in Iraq.”

Yingling said he decided to write the article after attending Purple Heart and deployment ceremonies for Army soldiers. “I find it hard to look them in the eye,” he said in an interview. “Our generals are not worthy of their soldiers.”

Next to last, but not least, the Bush administration war on the rule of law continues apace with its latest attempt to make it impossible for lawyers to provide meaningful or effective representation for Guantanamo detainees. I would write about this but words fail me to describe the petty viciousness of this idea and the manifest hostility to the very due process that I would have thought was one of the great achievements of our civilization. The NYT has an editorial which says part of what needs saying; some more of it is found in this Conversation with Gitmo Lawyer on Proposed DOJ Rules. Don’t look to the Supreme Court to do anything fast — in tangentially related cases, it’s not rushing the process, which is Shakespearian in its delay:

“For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns
That patient merit of the unworthy takes,”

Meanwhile, only the willful blindness of one or two men (Bush, Chaney, take your pick), ensures that the US Army will continue to bleed itself dry in Iraq, to no visible benefit to anyone outside the White House. I understand that our departure could lead to horrors — and think we have a duty to mitigate them, especially be admitting a very large number of refugees here in order to protect all the people who have helped us. If there were a plausible scenario by which staying on would allow us to enact the ‘Pottery Barn rule’ (you broke it, you pay for it), I could support that. But the occupation is as big a failure as the initial military campaign was a success. No one arguing for staying on has a winning strategy that they can articulate other than “retreat is not an option”.

I tremble for my country when I reflect that God is just, that His justice cannot sleep forever.

— Thomas Jefferson

Rumsfeld's House of Lies and Inhumanity

British lawyer Clive Stafford Smith has 36 clients in Guantánamo. He’s written a book called “Bad Men” about what a twisted place it is, and the Guardian is running excerpts,

In Guantánamo, the military began with smaller lies and worked upwards. I was visiting Camp Echo one day and they had messed up the visitation schedule. The client I was meant to see was not there, although I had sent the schedule for my visits several weeks before. I thought I might as well go ahead and see Shaker Aamer [British resident captured in Afghanistan], whom I was not meant to meet until later in the week. So I asked the SOG (the sergeant of the guard, in charge of the camp) whether Shaker was in his normal cell. “No, he’s not here,” the SOG replied. I settled down for another wasted hour, waiting for the military to bring over someone I could see. It was hot even under the umbrella at the “picnic table” - the area behind one of the cells in Camp Echo where they made lawyers wait. I watched a lizard crawling up the green mesh on the wire fence. I thought about the spider in Robert the Bruce’s cave, continually battling to spin its web and teaching patience to the early Scottish nationalists.

The next day I saw Shaker. “Were you here yesterday?” I asked. “Yeah, of course. I’ve been here for weeks,” he replied. …

The dissembling disease got worse as time passed. First there was the effort to suppress the truth, with censorship or silence rather than any overt falsehood. Then there was the lie by semantics, where the US military redefined the language to provide plausible deniability. Finally, there was the bare-faced lie. This kind of culture does not germinate in a vacuum. Rumsfeld is responsible for a reconstitution of the English language. …

In a December 2004 press conference, the US navy secretary Gordon England tried to defend conditions in Guantánamo by producing the novel argument that the camp was rehabilitative: “People have learned to read and have learned to write, and so it’s not just being incarcerated. We do try to get people prepared for a better life.” Prisoners had some difficulty exercising their new-found abilities. Indeed, contrary to England’s statement, prisoners in Guantánamo were certainly not considered “people” and the guards were not even allowed to call them “prisoners”. …

Meanwhile the authorities exercised rigid control over any information that the prisoners received. Each time I went to visit, I would take a suitcase full of reading materials. I maintained a log reflecting the fate of each publication. Magazines awarded the stamp DENIED included National Geographic, Scientific American and Runner’s World. On one occasion it seemed justified, since that month’s National Geographic had a story about building an atomic bomb, but the editions about whales and African tribes hardly seemed a threat to national security. One soldier explained the censorship of Scientific American to me: the prisoner might learn about some hi-tech weapons system. Banning Runner’s World was less obvious, given the naval base was surrounded on one side by a Cuban minefield and on the other three by ocean.

…I dropped off an anthology of first world war poetry for Omar Deghayes that included Wilfred Owen’s poem Futility, about the ghastly violence of war. It was returned DENIED.

Omar was born in 1969 and was a British refugee from Libya. His father was tortured and killed by Muammar Gadafy in 1980, and as a teenager Omar moved with his family to Brighton and studied law. He had not completed his law exams, so I brought his books so he could study, ready for his release. Law books, though, were not permitted, least of all a subversive tome about the legal rights of prisoners.

…

The only Australian left in Guantánamo, David Hicks, was facing a military con-mission, like Binyam, and his lawyer was banned from giving him Scott Turow’s legal thriller Presumed Innocent. The basis for censoring The New Dinkum Aussie Dictionary was less clear. Perhaps the strangest decision involved four books returned with the notation: “These Items were not Cleared for Delivery to the Detainee(s).” They were Puss in Boots, Cinderella, Jack and the Beanstalk, and Beauty and the Beast - all in Arabic translation. As one FBI agent admonished me: “You know that Arabic script is full of squiggles, and it can easily hide messages to the prisoners.” Could it be, I wondered, that Cinderella was secretly an enemy combatant? Eventually the military barred us from bringing books for our clients altogether.

And then there was the secrecy: lawyers were neither allowed to repeat anything the prisoners said to them, nor even to keep their own notes, which were all shipped to DC to be scrutinized by a declassification group before they’d be let out into the open.

All this was to control the flow of bad news out of Guantánamo. From the beginning Joe Margulies, the other civilian lawyer working for Binyam Mohamed, encapsulated the proper response to this: if we could open up the prison to public inspection, the government would close it down.

And there was a lot to hide. For example,

The way the military had pretended to torture his wife in the next room, even information about American soldiers murdering two prisoners in front of Moazzam, was considered a “method of interrogation” that could not be revealed.

Amnesty International’s report, USA: Cruel and Inhuman — Conditions of Isolation for Detainees in Guantanamo Bay is grim. I wish every member of Congress could be persuaded to read it.

Despite being provided with what the US government has called “high quality” medical care, adequate food, sanitation and access to religious items, most detainees have languished in harsh conditions throughout their detention, confined to mesh cages or enclosed maximum security cells. Moreover, in December 2006, a new facility opened on the base. This facility, known as Camp 6, has created even harsher and apparently more permanent conditions of extreme isolation and sensory deprivation in which detainees are confined to almost completely sealed, individual cells, with minimal contact with any other human being.

…

At the time of writing, about 300 of the Guantánamo detainees — nearly 80 per cent of the current detainee population — were believed to be held in isolation in Camps 5, 6 or Camp Echo. According to the Pentagon, 165 detainees had been transferred to Camp 6 from other facilities on the base by mid-January 2007. Around 100 detainees are held in Camp 5, and some 20 more are believed to be held in isolation in Camp Echo, a facility set apart from others on the base, which was originally used to hold detainees selected for trial by military commissions. Fourteen “high value” detainees transferred from years of secret detention to Guantánamo Bay in September 2006 are also held in isolation on the base, although their exact location is unknown.

The isolation, and other psychologically damaging aspects of the treatment are literally driving the prisoners crazy. It is no surprise that there are suicides and growing hunger strikes.

I do not believe that this sort of treatment can be justified under any moral standard, however elastic.

Detainee 940 Still Waiting for Justice

This, on the other hand, is not funny at all: Guantanamo Waiting for Justice, the latest from Project Hammad.

(thank you to MK).

ACLU on Surreal Hicks Proceeding

In the don’t-miss category is this blog entry at the ACLU Blog by Ben Wizner posting from the Gitmo hearings of Australian David Hicks, A Tailor-Made Guilty Plea.

Here are some of the best parts:

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks’s lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing — but the result was the first empty chair at Hicks’s table.

Next, and far more troubling, the judge stated that Hicks’s civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission’s regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel’s words, “usurping the authority of the Secretary of Defense.” Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. “I cannot sign a document that provides a blank check on my ethical obligations as a lawyer,” Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. “I find no merit in the claim that this is beyond my authority,” he said. “That’s sometimes what courts do, they find a way to move forward.” Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

“I’m shocked,” said Hicks, “because I’ve just lost another lawyer. Now I’m left with poor Mr. Mori.” (Major Dan Mori is Hicks’s very able military defense counsel.)

This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks’s clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was “designed to protect the presumption of innocence,” the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.

D.C. Circuit Upholds Jurisdiction-Stripping of Guantanamo Habeas Claims

This is the “Al Odah” case, although it may end up captioned differently (Boumediene v. Bush, 05-5062 (D.C. Cir., Feb. 20, 2007)). Text of the 2-1 decision by Judge Randolph for himself and Judge Sentelle. There’s a long and persuasive dissent by Judge Rodgers, noting that the Supreme Court, at least in dicta, appears to hold a different view about key elements of the case.

If Sandra Day O’Connor were still on the Supreme Court, I’d predict reversal with some confidence. Now, I’m not as sure, but I still think there is a good chance that there are at least five votes left to overturn this. I suspect that there is, however, no real chance it would be overturned en banc in the D.C. Circuit. That court has become astoundingly right-wing as of late.

Truth, Justice, and the American Way

Pentagon sets rules for detainee trials - Yahoo! News

The Pentagon has drafted a manual for upcoming detainee trials that would allow suspected terrorists to be convicted on hearsay evidence and coerced testimony and imprisoned or put to death.

Well, that explains why they drafted it in secret and chose not to put up a rough draft for public comment as is commonly the case (although not legally required) for rules of this type.

Full text of the manual is now online, but I have not had a chance to read it yet.

In Our Names

Joseph Margulies has a hard-hitting article, U.S. can't tell a combatant from a cook in the Chicago Tribune.

We've known that there were a lot of innocent people at Guantanamo, but this many?

The Pentagon's data show that only 8 percent of the prisoners at the base are even alleged to have been Al Qaeda fighters--assuming the allegations against them are true.

Even slave laborers are classified as "enemy combatants":

Officers told [Abdul] Aliza that having been kidnapped by the Taliban and forced to serve as a cook or a waiter was irrelevant to whether Aliza was an enemy combatant. Aliza found this impossible to comprehend.

"You mentioned that being forced and not being forced are the same," Aliza told his interrogator. "How can a person that is forced or not forced to do something be equal? . . . [I]f I was taken by force by the Taliban, how can I be a member? If I'm not willing to do something, but forced by a soldier to do it, how can the two have the same meaning. . . . If you don't agree with them they will beat and torture you and then throw you in prison."

No one answered Aliza's questions, and authorities decided he was an enemy combatant. As of late 2006, Aliza was still at the base. He may be there still; the Pentagon refuses to say.

So, correct me if I'm wrong, but under this logic, Jewish inmates in Nazi concentration camps could today be considered "enemy combatants"?

Kafka. It's pure Kafka:

In summer 2005, the Bush administration announced that 70 percent of the base's prisoners had been slated for release because they were not a threat. It never happened.

Though some were released, most of the prisoners continue to languish at Guantanamo and, the administration says, may be held there for the rest of their lives, with no evidence presented against them and no opportunity to plead their case in court.

Much of the problem has to do with the words and definitions the administration uses.

Being an enemy combatant does not mean a prisoner did anything wrong, the administration said in documents written by the Department of Defense in 2004.

My tax dollar at work. And yours, if you're a US taxpayer too.

Surely there must be something we can do about this besides carp and bear witness?

White House Tries Economic Pressure on Lawyers Representing Guantanamo Detainees

I'm sorry, but this is just disgusting. Now that there's a real chance that the might lose in the courts, the White House is trying to put the economic screws on lawyers representing Guantanamo detainees.

This radio interview with Cully Stimson, a Deputy Assistant Secretary of Defense, heralds the start of an organized campaign by the White House to encourage major law firm clients to pressure those firms to drop their pro-bono representation of Guantanamo detainees.

The Washington Post had a forceful editorial about this today, which says almost everything that needs saying:

MOST AMERICANS understand that legal representation for the accused is one of the core principles of the American way. Not, it seems, Cully Stimson, deputy assistant secretary of defense for detainee affairs. In a repellent interview yesterday with Federal News Radio, Mr. Stimson brought up, unprompted, the number of major U.S. law firms that have helped represent detainees at Guantanamo Bay.

"Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking," he said.

Mr. Stimson proceeded to reel off the names of these firms, adding, "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

It might be only laughable that Mr. Stimson, during the interview, called Guantanamo "certainly, probably, the most transparent and open location in the world."

But it's offensive -- shocking, to use his word -- that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking -- though perhaps not surprising -- that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

It's true that the list of law firms donating time to representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo reads a bit like a who's who of the elite of the corporate bar. And they deserve credit for it.

I'd just add one thing: the first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber. If you won't stand up for your most desperate clients, what kind of firm are you?

January 11 is the International Day to Shut Down Guantanamo

Today is the International Day to Shut Down Guantanamo.

And there are major reasons to shut that place down now. See, for example, Human Rights Watch, Guantanamo Five Years Later: It's Time for Justice.

There will demonstrations all over the world -- including here in Miami. A friend writes:

The Miami Chapter of Amnesty International will be participating the in the demonstration on Thursday, January 11, 2007 asking for the closure of Guantanamo. It will be at the intersection of NW 87 Ave and 36 St, one block from Southcom from 7:00 a.m. to 11:00 a.m.

The flyer for this event has this additional info:

Park at the Miami West Park, 3000 N.W. 87th Ave. 3 blocks south of the event. This park is also a peaceful rest area, should you need to sit down for a spell.

The Guantanamo prisoners have never been charged, tried, or convicted of any crime. We are a nation of laws and our humanity is threatened when we accept or allow unjust imprisonment, torture and even deaths in the name of America.
Many of us will wear orange jumpsuits and hoods. We will each take on the name of one prisoner and stand for their rights.

Miami for Peace is sponsoring this action with Global Exchange, CODEPINK Women for Peace, United for Peace and Justice, the Bill of Rights Defense Committee, Veterans for Peace South Florida, Miami Chapter of Amnesty International and many others.

As DKos asks, Will This Outrageous Outlawry Never Be Stamped Out?

Defund GITMO - Justice in the USA

Here's my modest proposal for the Democratic Congress: defund Gitmo. Bring all the prisoners into the US, where they will be guaranteed due process or POW status depending on whether they are civilians or foreign fighters.

Too simple? Why?

I wish I could make a similar proposal for the legal cesspools in Iraq, but there are two reasons why I can't. First, the Geneva conventions impose limits on the occupying power's ability to remove civilians from the jurisdiction. Second, the numbers involved are simply too large.

But we could at least require that any US citizen arrested in Iraq be released within 48 hours or repatriated for trial.

Gitmo

It's good to have a Democratic Congress:

The US Department of Defense (DOD) has indicated that it will seek congressional approval for its planned $100 million Guantanamo Bay legal facility rather than expedite construction by declaring it an emergency expense.

I would imagine someone had a quiet word and made a quiet threat?

[Background info at Pentagon Rushes to Build Mega-Complex at Gitmo -- Before Dems Take Congress?]

Pentagon Rushes to Build Mega-Complex at Gitmo -- Before Dems Take Congress?

Today's Miami Herald has a great story on the Pentagon's unseemly rush to build "in three months, a mini-city on an abandoned airfield to stage the trials -- two new courtrooms with space for two more, dining, housing and work space for up to 1,200 military and civilians working at the trials, and media, conference and classified information centers."

The Pentagon is invoking emergency authority to fast-track funding of a comprehensive war-crimes court compound at Guantánamo Bay, Cuba, according to a letter to Congress obtained by The Miami Herald.

Department of Defense spokesmen would not say when -- if ever -- the Pentagon had last invoked similar authority.

Nor would they specify which milita