March Madness Strikes the Terror Debates

The Wall Street Journal is absolutely right thatLindsey Graham is tossing up an embarrassing air ball. Graham's effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast, predicts the Journal.

As I've noted before, Graham doesn't have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it's absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip - it's survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them - particularly if military commission convictions are reversed on appeal. They'll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they're obstructing justice to score political points. Not only do they oppose federal trials, but they won't agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain - when he was a presidential candidate - agreed that Guantanamo must be shuttered.

So the Journal's right that Graham can't possibly deliver victory on his proposed compromise. But the paper's conclusion -- that military commissions are the place for KSM & Co. to go -- is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years - only two of which followed trials that were even contested -- hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden's right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years - most of which he'd already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes' and Goldsmith's solution, however, is even worse than the Journal's. "Don't bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren't great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that's been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchillreportedly told Joseph Stalin that he'd rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

Protecting Refugees: an American Commitment and Tradition

 

This week marks the 30th anniversary of the Refugee Act of 1980, a landmark piece of legislation that changed the U.S. approach to refugee protection by creating the legal status of asylum and a formal process for resettling refugees from around the world. It affirmed the U.S. commitment to providing refuge to victims of religious, political and other forms of persecution.

Every day at Human Rights First we see up close the ways in which the Refugee Act makes a difference in the lives of individual refugees. There is no more concrete reflection of the Refugee Act's achievements than seeing refugees and their families find safe haven in the United States.

Watch our video highlighting what this Act meant - including how it helped one of our clients restart his life.

While the last 30 years has seen much progress in protecting refugees fleeing persecution, we also have seen in our work at Human Rights First where the United States has at times faltered in it its commitment - interdicting Haitians at sea without adequate protection safeguards, allowing political preferences to undermine the objectivity of asylum adjudications in the 1980s, and nearly shutting down the resettlement system in the wake of the September 11 attacks.

Particularly in the last fifteen years, a barrage of new laws, policies and legal interpretations have undermined the institution of asylum in the United States and led this country to deny asylum or other protection to victims of persecution. Detention has escalated dramatically, and refugees with well founded fears of persecution are barred from asylum due to a filing deadline that limits access to asylum.

We can do better. Our history as a country of refugees, our tradition as a safe haven and beacon of hope for the persecuted, and our obligations under the UN Refugee Convention and Protocol all tell us we must do better.

Yesterday, on the anniversary of the signing of the act, Human Rights First held a symposiumbringing together policymakers and experts in U.S. refugee and asylum law to discuss how we can overcome the current challenges in the U.S. refugee resettlement and asylum systems. It was an inspiring meeting that gave me hope for future reform.

This week we have seen movement: Senators Patrick Leahy (D-VT), Carl Levin (D-MI), Richard Durbin (D-IL), and Daniel Akaka (D-HI) have introduced the Refugee Protection Act of 2010 (S. 3113), legislation designed to strengthen America's commitment to protecting refugees by repairing many of the most severe problems in the U.S. refugee and asylum systems. Human Rights First commends these Senators for their leadership. You can demonstrate your support for their efforts here.

Millions of Americans are here today because at some point they or their parents - or grandparents - had to flee from oppression or persecution and were either granted asylum or resettled as refugees here in the United States. After reflecting on the last 30 years since this law was passed, we have a lot to be proud of, but there is still a lot of work to be done. Together, we can ensure that our nation lives up to the promise of the Refugee Act.

 

Pressure Mounts on DOJ to Produce Missing E-Mails

The pressure is growing on the Justice Department to produce supposedly "deleted" e-mails that could reveal whether government lawyers during the Bush administration were instructed to devise legal justifications for torture.

These are, as I noted last week, most of John Yoo's e-mails, and a chunk of those of his colleague Patrick Philbin at precisely the time that Philbin was involved in reviewing two of the controversial Office of Legal Counsel memos approving torture, stress positions, prolonged sleep deprivation and other abusive interrogation techniques. As the Office of Professional Responsibility pointed out in its final report on the lawyers' ethical obligations, those e-mails were all oddly deleted and unretrievable.

So far, Citizens for Responsibility and Ethics in Washington (CREW), the National Archives, Senator Patrick Leahy (D-Vt.), and The New York Times have called on DOJ to find and produce the e-mails or lauunch a criminal investigation if they were indeed destroyed.

Then on Monday, Rep. John Conyers (D-Mich.) took a different tack; he called on the the National Archives to produce the White House side of those missing e-mails, since those are presidential records that must be retained under the Presidential Records Act.

Over the weekend, John Yoo, while railing at the "incompetence" of the OPR, which was "obviously biased" and "selectively tried to persecute only a few officials" in the OLC (they should have gone after the whole Justice Department, apparently), denies that OPR didn't have his e-mails and adds that in any event, the Justice Department's e-mail system is unclassified and so couldn't be used to discuss interrogation techniques that were "classified at the highest levels of secrecy."

Of course, discussions between Yoo and the White House or CIA about the memos he was writing didn't necessarily have to contain classified information in them for them to reveal whether senior officials were instructing Yoo to find a justification for breaking the law. In fact, many e-mails referenced in the report related to the memos were not classified, asMarcy Wheeler pointed out on Sunday.

Meanwhile, the National Security Administration, as it notes on its website, provides "security configuration guides" for government agencies to help them transmit classified material electronically. So whether it was through his DOJ e-mail or another government e-mail address, Yoo was almost certainly able to send classified material to his "clients" - the White House and the CIA -- by e-mail.

There doesn't appear to be any real question that Yoo was required to retain those e-mails. As CREW wrote in its letter, the Federal Records Act requires the preservation of government documents. Over the weekend, Jason Leopold pointed out on Truthout that the DOJ's web site explains that an e-mail is probably a federal record that must be preserved if it documents "agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities; Provides comments on or objections to the language on drafts of policy statements or action plans; or Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities." The DOJ rules also say that "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."

Even if Justice refuses to further investigate whether high-level officials in the former administration broke the law, it may feel some pressure to at least investigate whether a DOJ attorney broke the DOJ's own rules - which may turn out to be an attempt to cover up some much more serious lawbreaking.

What We Need to Hear About the Torture Report

At 10 a.m. on Friday, February 26, the Senate Judiciary Committee will hold a hearing on theOffice of Professional Responsibility's investigation into the Justice Department memos that authorized the torture of detainees in U.S. custody during the Bush administration.

That's a good start for a committee that's closely followed this issue, but it should be just the beginning.

Human Rights First will be attending and blogging on the hearing. We'll also be answering readers' questions about the report, the Senate hearing, and the various ways of holding accountable the government officials who participated in plans to interrogate prisoners using torture and cruel, inhuman, and degrading treatment.

So far, the only witness scheduled to testify at that hearing is Gary G. Grindler, the Acting Deputy Attorney General who's temporarily replaced David Ogden, the senior DOJ official who resigned in December.

Given that the OPR report found that Office of Legal Counsel lawyers deliberately or "recklessly" twisted the law to justify the use of interrogation techniques that amounted to torture, the Justice Department now has strong evidence of a criminal conspiracy. But we need to know more, and we hope the Senators on the Judiciary Committee tomorrow will be asking the right questions.

Here are some questions we'd like to put to the Justice Department, and to the Committee:

1) Where will the Justice Department take this investigation from here? What are the next steps?

2) The OPR said its investigation was hampered by the mysterious disappearance of John Yoo's e-mails, as well as those of his colleague, Patrick Philbin. The FBI has the technology necessary to recover deleted emails. Will the Justice Department employ that technology?

3) The disappearance of Yoo's and Philbin's e-mails are more than just suspicious. It may amount to a deliberate obstruction of justice. Will DOJ investigate when and why the messages were deleted, and whether their deletion amounts to a crime?

4) In addition to the missing e-mails, the OPR investigators noted that many key witnesses "declined" to speak with OPR, seriously limiting its investigation. Witnesses who refused to speak to investigators included every former White House official except Alberto Gonzales, and almost all of the CIA attorneys. CIA records also were not available. Only by collecting all of this relevant evidence can we know what instructions White House and CIA officials gave to the OLC lawyers, and whether the lawyers were told to draft legal justifications for what both lawyer and client knew was criminal conduct. Will DOJ use its subpoena power to require those witnesses to provide testimony and relevant records?

5) The Justice Department has so far suggested that it will not criminally investigate the conduct of any senior officials or lawyers in the prior administration. Will the Senate Judiciary Committee schedule further hearings of its own to find the answers to these questions?

6) Some lawmakers have proposed an independent, nonpartisan "Commission of Inquiry" to investigate how the U.S. came to abuse and torture detainees. A commission could go a long way toward revealing what really happened and making concrete recommendations to keep it from happening again. Will the Justice Department and Senate Judiciary Committee support creating a commission to ensure that we learn from our past mistakes?

Please suggest any more questions you'd like to see answered, and follow up with any questions for us after the hearing!

Bush Official: They Knew Many Innocent Were Tortured

Here it comes...the truth that Senator Pat Leahy must get at if his new Truth Commission has anything to do with truth.  New whistleblower, former Colin Powell Chief of Staff Larry Wilkerson, is blasting the media for burying the story of many innocents captured and tortured by the Bush administration, saying:  

largely unreported is that several in the U.S. leadership became aware of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.

   But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough: the dead in a field in Pennsylvania, in the ashes of the Pentagon, and in the ruins of the World Trade Towers. They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released.

Wilkerson says he felt compelled to step forward after Dick Cheney's recent bizarre interview in McLean, Virginia, in which he portrayed President Obama as coddling terrorists and being a danger to the Republic.  Wilkerson says that a former vice president engaging in such fearmongering and imputations to the president is "really, really dangerous." Wilkerson blasted Cheney for the:


unmistakable stoking of the 20 million listeners of Rush Limbaugh, half of whom we could label, judiciously, as half- baked nuts. Such remarks as those of the former vice president's are like waving a red flag in front of an incensed bull. And Cheney of course knows that.

Cheney said in the interview:


"When we get people who are more interested in reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry."

The problem is that the president has never said a single thing about reading rights to terrorists, and if anything has been moving much more slowly on closing Gitmo than many, including Wilkerson, would like.  In the same interview Cheney admitted to putting proclaimed terrorists back on the street.  He said "at least 61 of the inmates who were released from Guantanamo (sic) during the Bush administration...have gone back into the business of being terrorists."

Less clear was whether they were terrorists to begin with, or the kind of terrorist who, if they had nothing against America when they went in, sure did now.  

Wilkerson, a retired Army colonel who flew combat missions in Vietnam, wrote for The Washington Note:


al-Qa'ida will be back. Iraq, GITMO, Abu Ghraib, heavily-biased U.S. support for Israel, and a host of other strategic errors have insured al-Qa'ida's resilience, staying power and motivation. How we deal with the future attacks of this organization and its cohorts could well seal our fate, for good or bad. Osama bin Laden and his brain trust, Aman al-Zawahiri, are counting on us to produce the bad. With people such as Cheney assisting them, they are far more likely to succeed.

In other news, during a visit by George Bush to Calgary last week a Mohawk Indian advanced through a police line to effect a citizen's arrest of Bush as a suspected war criminal.  Gale Davidson of Lawyers Against the War of Vancouver crafted a legal position that under Canadian law Bush could be arrested.  Splitting the Sky, a Mohawk from Six Nations, first evoked international law by asking the RCMP to arrest Bush.  When they refused he told them, "I am serving you notice that you are protecting a war criminal and an international terrorist.  You can be tried, convicted and executed as a collaborator before a Nuremberg-type tribunal".

Splitting the Sky then broke through the police line and advanced alone to arrest George Bush.  He got 2 to 3 feet into the Center.  He pushed his way through with his hands over his head yelling, "I am not touching anyone".  Police surrounded and pounced.  He was arrested and beaten in the police van and jail cell, where he was kept for 24 hours and released on $500 bail.  He sustained serious bodily injuries, including a partial concussion and a massive hernia.

His defense fund and website are at http://www.splittingthesky.blogspot.com/

FORWARD TO Senator Pat Leahy's email: senator_leahy@leahy.senate.gov

LINK TO CONGRESS EMAILS.   LINK TO EMAIL WHITE HOUSE.

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