Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict "signals weakness in a time of war."

John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."

And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."

There's more...

Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict "signals weakness in a time of war."

John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."

And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."

There's more...

Palin’s Monday Morning Leak Plugging

The world’s new infant terrible, WikiLeaks head Julian Assange, is the water cooler topic this week for dropping 250,000 secret State Dept. documents on an unsuspecting populace. There’s no dearth of analysis of the documents. There are numerous pieces citing the most damaging documents and lots of embarrassing sniping like thinking Hamid Karzai is an incompetent pootiehead – a “revelation” that could hardly be called a secret.

Opinions about whether the leak was a good thing or bad thing depend largely on where you stand. Journalists don’t necessarily say Assange was right, they mostly just concentrate on mining the information for interesting bits for reportage. Politicians and diplomats are foursquare against it since the cables are embarrassing and potentially dangerous. As usual, the public is schizophrenic.

Unless you’re a complete pollyana that believes all governments are intrinsically good and that speaking publically and directly between countries is always the right strategy, you miss the point that there are bad guys out there – sometimes even including the US. To deal with the bad guys, a certain amount of secrecy, spying, and circumspect diplomacy is required.

But not all secrets are created equal.

Not All Secrets are Created Equal
The government frequently classifies information more tightly than is probably warranted. After all, classifying secrets is a subjective task. I’m sure the leaks reveal some of these over-protected facts, but that’s not necessarily a reason to release them. Some are things the public has a right to know, others are better kept quiet. In other words, The Big Dick™ keeping his appointment calendars secret surely carries less weight – some would say no weight at all – than a memo revealing nuclear launch codes, but that’s “above our pay grade”.

Once the leaks are in the open, journalists are faced with their own dilemma – report on them thereby expanding their dissemination or keep mum even though the information represents a horse that has already escaped the barn. There are points to both positions.

The public is of both minds, although both minds probably read the leaks with interest and sometimes amusement – even the folks who are against the release. They’re like people who go to NASCAR races and swear they aren’t there to see the crashes.

Then in our present rancorosity, charges, counter-charges, rumor, and fact congeal into a dirty mess. Sarah Plain leads this camp. Big surprise here, she thinks Obama is an incompetent boob who let it happen. She trumpets that the administration should be pursuing Assange like Osama Bin Laden. She also thinks Assange is a traitor, apparently unaware that he is Australian so if there is any treason, it’s between him and the Land Down Under.

In fact, Obama is ultimately responsible because it happened on his watch, but that doesn’t mean his response is any more incompetent than Sarah’s would be in the unlikely event she was in Obama’s shoes.

Spying and leaks are notoriously difficult to detect beforehand. Normally, the culprit either needs to be the incompetent one or the information has to leave the building before you even know there’s a problem. To one degree or another, this has happened to every administration. The Obaminites already have Army Specialist Bradley Manning in custody and is conducting additional investigations to catch any new culprits and tighten security.

Hunting down Assange like the second coming of the Cave Dweller might sound all mavericky, but it isn’t necessary. Sweden has a detention order out for him and his lawyer has regular contact with him. Finding him using the investigative power of the entire western world shouldn’t be that hard. Heck, we could even send The Big Dick™ or his sock puppet George out to waterboard the lawyer to find Assasnge.

Legal Remidies are Never Quick
The administration isn’t letting the legal issue go away. AG Eric Holder is conducting an “active, ongoing criminal investigation” into the leak. However, it’s not clear exactly what the US can do legally to apprehend and prosecute an Australian who may be in Sweden and is already in legal hot water there not to mention the other countries looking for his crapulent hide. Legal remedies are never quick, especially with multiple countries involved.

As for freezing funds, the US can’t freeze funds elsewhere or as is likely in this case protected or hidden, without the legal help of those countries. Besides, I’m not sure anyone knows how much WikiLeaks or Assange has.

Does the Obama adminsitration deserve criticism for what has happened? Yes, it happened on their watch, just like 9/11 happened to the last administration’s. Do things need to be changed? Yes, there always are when something happens and you find holes in what you’re doing. Has the administration been slow on the uptake? Yes, but probably not any more so than similar problems happening in earlier administrations.

Assange says his next docudump is on a large US bank (rumored to be Bank of America).  Once this one comes around will Obama again be at fault or accused of some nefarious plan to intentionally cause the leaks as some have charged this time? I suspect so, but we’ll see. Miracles do happen, but there are some who believe Obama is some sort of Machiavellian schemer who “hates America”, which would seem to be at direct odds with the same people who think he’s too incompetent to tie his shoes.

The truth is none of us know what he’s doing or will do or how fast he will do it. At this point, it’s a secret.

You know, that thing he is supposed to be unable to keep.

Cross posted at The Omnipotent Poobah Speaks!

What happens when we give up the ideals that define us?

From the Restore Fairness blog-

Incidents around the country continue to undermine the principles of equality, justice and dignity for all that have played an important role in making America the strong nation it is today. In a story reported by the New York Times, a Brazilian man, Genesio Oliveira, is facing deportation and separation from his husband, Tim Coco, an American citizen and resident of Massachusetts, soon after federal officials allowed him to be reunited with his husband earlier this year.

The current situation is reminiscent of the ordeal the couple went through 3 years ago when they were forced to live apart after Genesio was denied asylum on claims of being raped as a teenager in Brazil. The judge deciding the case said he found Genesio’s fear of returning to Brazil “genuine” but denied him asylum on the grounds that he was never physically harmed by the rape. This ruling received a lot of attention from civil rights and immigrant rights groups around the world who criticized U.S. officials for separating a couple that was legally married. Following a request from Senator Kerry in June this year Genesio Oliveira was allowed back into the country on humanitarian grounds. He fervently hoped that this would induce the Attorney General to reverse the initial ruling that forced him back to Brazil, but even on Sen. Kerry’s urging, Eric Holder is refusing to reverse the earlier decision in a way that would allow Genesio to apply for permanent residency and stay with his husband.

Laws that interfere with civil rights and liberties are making their presence felt on a national level, as is evident in the constantly evolving TSA (Transportation Security Administration) regulations regarding security screenings in airports around the country. Three of the largest Sikh advocacy groups in the country are opposing screening measures at airports that require hand searches of all people wearing turbans, even if they agree to undergo full body scans using Advanced Imaging Technology. Representatives from the Sikh Coalition, United Sikhs and the Sikh American Legal Defense and Education Fund announced their opposition to screening policies that they say unfairly target members of the Sikh community.

Hansdeep Singh, a senior staff lawyer for United Sikhs based in New York, told the New York Times about a meeting that took place with TSA officials some weeks ago, in which members of Sikh groups had hoped to hear that with the introduction of Advanced Imaging Technology, there would be less hand and wand searches of turbans in airports. Instead, what they were met with was news of the development of “a patchwork of airport security policies… in which all turbans are searched.” Amardeep Singh, the Sikh Coalition’s director of programs, told the Associated Press, “The TSA told us, point blank, that turbans will now be screened 100 percent of the time.” Referring to the racial profiling and hate crimes that Sikh Americans have been faced with post September 11, 2001, Singh said, “Sikh Americans are already looked at differently in this country. Once you start pulling Sikhs aside for extra screening, it sends a message that the government is suspicious of them for the same reasons [other passengers] are suspicious of them.”

While TSA officials have not confirmed the introduction of a blanket policy, they reiterated Security procedures introduced in 2007 that included provisions for all “bulky” headwear to be searched. National Sikh organizations are urging their constituents to lobby Congress to overturn a blanket TSA policy that calls on all Sikhs wearing turbans to undergo a hand search of their turbans in spite of the Advanced Imaging Technology screening that screens metallic, plastic and ceramic through items of clothing.

In the midst of these incidents and policies that strike at the heart of this nation’s diversity, we did get wind of a heartening story that evidences a positive stance towards minority communities. Today, New Haven officials announced their plans for New Haven Promise, a new program that grants college tuition to high school students from public and charter school, provided that they maintain a 3.0 grade point average and 90% attendance rate.  The program, financed by Yale University, will pay up to 25% of the tuition for qualifying seniors who go on to public colleges or universities in Connecticut next year, up to 50% for the class after that, up to 75%for the following class; and up to 100% for the Class of 2014. According to Mayor John DeStefano, Jr., the program is like a “contract that says to kids: If you work hard, you demonstrate academic achievement and display appropriate behaviors, we’ll give you the tools to go to college and therefore inject choice and opportunity in your lives.”

Most importantly, the Promise will be open to all New Haven residents irrespective of their immigration status, and that includes those young adults who are undocumented and would be eligible for the DREAM Act, were it to be passed. Right now, students have to be legal residents or citizens in order to be eligible for in-state tuition rates and undocumented students are charged out-of-state tuition, which is about $10,000 at the state universities and $24,500 at University of Connecticut.

This is just one more step in the right direction for New Haven officials who are supportive of the immigrant communities that are an integral part of the city. From the New Haven Independent-

State legislators, including New Haven Sen. Martin Looney, have been pushing for a statewide version of the DREAM Act that would allow Connecticut residents who are undocumented immigrants to get in-state tuition. DeStefano said he will urge the state legislature to pass such a bill; he also said he’s working with various in-state colleges to work out an arrangement concerning the issue. Until such a change is made, he said, Promise will pay “full tuition” for each eligible student, even if that student is an immigrant who must pay out-of-state tuition.

It is important that we work together to honor the diversity that is the strength of this nation. As long as we continue to deny equality, justice, dignity and liberty to some, we cannot guarantee human rights for anyone.

Photo courtesy of blogs.cnn.com

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Critics of Ghailani Trial Have Little Faith in U.S. Law

On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.

Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.

In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.

The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.

Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.

"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?

Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.

Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.

If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.

Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.

Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.

 

 

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