Court Order Highlights U.S. Legal Distortions

Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one news story and a few particularly alert bloggers, they get barely a mention in the news.

In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student’s family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.

If that sounds bizarre, it’s not, really. Pursuant to the Obama administration’s interpretation of the Authorization for the Use of Military Force, or AUMF, it says it has the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.

Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student’s home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.

The other men seized in the raid corroborated Odaini’s story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini’s consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.

Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini’s home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini’s lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.

In ruling on that petition, Judge Kennedy said that the evidence presented to the court “overwhelmingly supports Odaini’s contention that he is unlawfully detained.” Reviewing the evidence in painstaking detail, including Odaini’s and other detainees’ statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini’s detention based on the paucity of proof.

The government repeatedly “distort[s] the evidence,” writes Judge Kennedy, concluding that the only way to believe the government’s position is “if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence.”

The judge concludes:

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini’s motion must be granted.

In concluding that Odaini’s detention “has done nothing to make the United States more secure,” Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government’s interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or “targeted killings” outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.

The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it’s insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release – based on evidence that it acknowledges would not hold up in court.

Even more troubling is the administration’s continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here – eight years after his capture.

Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who’s detainable under the law.

The case of Mohamed Odaini is yet another reason to listen to them.

Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.


Palin confirms: Bush lied to Congress

I gave the president the power. I voted for the power because he said he needed it not to go to war but to keep the United States -- the UN -- in line, to keep sanctions on Iraq and not let them be lifted.

--Sen. Biden, Oct. 2, 2008 debate

Because here you voted for the war and now you oppose the was a war resolution.

--Gov. Palin, Oct 2., 2008 debate

Bush's own words about the resolution:

Later this week, the United States Congress will vote on this matter. I have asked Congress to authorize the use of America's military, if it proves necessary, to enforce U.N. Security Council demands. Approving this resolution does not mean that military action is imminent or unavoidable. The resolution will tell the United Nations, and all nations, that America speaks with one voice and is determined to make the demands of the civilized world mean something.

--George W. Bush, Oct. 7, 2002 speech

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What Hillary Really Wishes She Could Say

There is one thing Hillary could say that would remove all need for nuance in her campaign communications. If she could say this, she could say practically anything she wanted about Barrack Obama and she would be allowed such frankness simply out of respect. She could say virtually anything about her policy ideals and we would be given to respect them almost unconditionally. The Tuzla affair would have been a fleeting blip, merely a forgivably goofy gaffe, and we might even be tempted to praise her association with Rupert Murdoch. At this point in the democratic campaign we would all be looking forward to a Denver convention where there would be no talk of unity because, pretty much from the start, the party would already have unified around its candidate, and there would have been no Clinton-Obama divisions in the first place. In fact, Hillary Clinton could have ended this campaign in Iowa.

If she could only say what she now wishes she had said in Iowa and in each state throughout the campaign. If she had only said this:

"I just want to thank all of you who stood with me and others in our party in opposition to our president's misguided, short-sighted, and politically expedient campaign to create conflict in this world where no conflict was necessary. The minority of senators who actually took the time to investigate the National Intelligence Estimate were convinced that there were serious flaws in the administration's rationale, and given that the president has in most other ways shown himself to be untrustworthy, we simply felt that there was no way we could give the president our approval until those flaws were publicly addressed and answered to. Of course, as you will remember, there was great political pressure to give the president our approval and the benefit of the doubt. The president's approval ratings were at an all-time high, and the 24 of us who voted "no" in the senate did so despite polls that showed over 80% of the American public was against us at the time. But we felt that this vote was a matter too important to trade for cheap political gain, and in our hearts, and I know in my conscience, the moral choice was crystal clear. I voted NO to the Authorization for Use of Military Force because of my commitment to world peace and to the prescious lives of those who defend our liberties. And because of this commitment which I made public on October 10, 2002, you know that I can be trusted, more than any candidate remaining in this race, to bring our troops home in a timely manner, to provide our veteran service men and women with the best possible medical care, and to restore peace in the Middle East."

Well, I guess that about covers it, doesn't it? I'm convinced if she would have said this back in January we'd all be talking about Obama's chances in 2016, or whether he or Edwards or Richardson (probably Richardson) would make the best VP choice. But, like a lot of us have already discovered in our own personal endeavors, life can be cruel sometimes.

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The Speech No One Can Find!

For those of you who say Senator Clinton supported "BUSH'S war from the beginning here it is from the Congressional Record, and straight from the horses mouth. Please read it all before you comment, since "partially informed is poorly informed"

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Obama & "Ax" Lie Today to Voters re AUMF

"Earlier today, Sen. Obama attacked Hillary on Iraq by invoking Sen. Rockefeller and incorrectly saying that the WVA Senator opposed the 2002 Iraq vote.  The truth is that Sen. Rockefeller voted for the war resolution - not against it as Sen. Obama suggested to the people of Ohio. This seems to be an Obama campaign talking point since its top strategist also claimed that Sen. Rockefeller voted against the war resolution when he was on national television this morning.

"'Sen. Obama is so desperate to divert attention from his limited national security experience that he's not just misleading voters about Sen. Clinton, he's also misleading voters about his own supporters. That is not change you can believe in.' -- Clinton spokesperson Phil Singer" (Facthub)

Additionally: I heard Obama campaign manager David Axelrod repeat the same lie about Sen. Rockefeller today on ABC's This Week. I have relistened to the segment, which is still on my DVR. So it's a widespread Obama campaign meme for today -- to spread this outright lie.  It is near the top of the show, at the 55:45 mark [i.e., 55:45 minutes left in the show].

ABC News's blog, Political Radar, caught both Obama's and Axelrod's misstatements today.  The quote is below.

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