A tag team view of yesterday’s Gitmo news:
PRESIDENT BUSH took major steps yesterday toward cleaning up the mess his administration has made of the detention, interrogation and prosecution of those captured in the war on terrorism. …
… Yet as Mr. Bush took these constructive steps, he also undermined them. He delivered a full-throated defense of the CIA’s “alternative set of procedures” that the world properly regards as torture. With an election pending and families of Sept. 11 victims as his audience, he demanded legislative action on issues of enormous complexity in the few remaining days of the congressional session. And the bill he sent to Congress would authorize the administration to resume some of the worst excesses of the past five years….
…the detention and interrogation regime that Mr. Bush wants Congress to sanction is almost as bad as the one the Supreme Court forced him to set aside in the Hamdan case. Mr. Bush has no regrets about the interrogation tactics used on high-value detainees, which he did not name but which others have said included simulated drowning. He described the techniques as “tough” but “safe and lawful and necessary.” But they were not “lawful” — at least not as the Supreme Court has articulated the law. On the same day that U.S. generals were describing abusive techniques as ineffective and counterproductive, Mr. Bush insisted that the CIA’s program of secret detentions and coercive interrogations needs to continue.
Indeed, the bill he sent to Congress would largely authorize the system the administration created on its own after Sept. 11, 2001. It would allow military commission trials modeled principally on the ad hoc ones the military set up unilaterally. It would define compliance with Common Article 3 of the Geneva Conventions — which prohibits certain cruel and humiliating treatment of detainees — so as to allow categories of conduct the article clearly forbids. It would limit war crimes prosecutions for violations of Common Article 3 to certain specified serious violations. And it would eliminate most judicial review of detention policies. The administration seems to want a system in which the military keeps its hands clean while the CIA does the dirty work of violating international law and humanitarian norms.
And the president wants this system created in a matter of a few short days. “Time is of the essence,” he said. “Congress is in session just for a few more weeks, and passing this legislation ought to be the top priority.”
Mr. Bushâ€™s urgency was phony, driven by the Supreme Courtâ€™s ruling, not principle. This should all have happened long ago. If the White House had not wanted to place terror suspects beyond the reach of the law, all 14 of these men could have been tried by now, and Americaâ€™s reputation would have been spared some grievous damage. And there would be no need for Congress to rush through legislation if the White House had not stymied all of its attempts to do just that before.
The nation needs laws governing GuantÃ¡namo Bay, not just for the 14 new prisoners, but also for many others who have been there for years without due process, and who may have done no wrong.
Last month, for example, The Washington Post wrote about some of the first arrivals at GuantÃ¡namo Bay in 2002: six men, born in Algeria but living in Bosnia, accused of plotting to attack the United States Embassy in Sarajevo. Two years after their capture, Bosnian officials exonerated them. Last year, the Bosnian prime minister asked Washington to release them. But The Post said the administration has decided the men will never be returned to Bosnia, only to Algeria, and then only if they are confined or kept under close watch. Even the Algerian government wonâ€™t go along with that.
Mr. Bush could have prevented this sort of miscarriage of justice if he had not insisted on creating his own system of military tribunals, which the Supreme Court ruled illegal. Even now, the legislation he is proposing to handle GuantÃ¡namo prisoners would undermine key principles of justice. It would permit the use of evidence obtained through coercion, along with hearsay evidence, and evidence that is kept secret from the accused. The militaryâ€™s top lawyers have all publicly opposed these provisions.
Mr. Bush also wants to rewrite American law to create a glaring exception to the Geneva Conventions, to give ex post facto approval to abusive interrogation methods, and to bar legal challenges to the new system.
Some of the most influential Republican voices on military affairs, Senators John Warner, John McCain and Lindsey Graham, are sponsoring a more sensible bill that would bar the use of coerced testimony and secret evidence. Members of this Congress have a nasty habit of caving in to the White House on national security, and thereâ€™s a looming election, but it is vital that they stick to their principles this time.
This announcement may appear superficially to constitute a reversal, or even a capitulation, by the Bush administration, but there are significant political benefits to be gained from the White House’s maneuver, including election-season pressure on lawmakers to support policies the administration has pursued all along for the “war on terror.” …
…Republican strategists have made explicitly clear that their strategy for the midterm elections, now just two months away, is to highlight the terrorist threat to the fullest extent possible. Accordingly, top Bush officials, including the president, have spent the last week giving a series of extraordinary speeches about terrorism, featuring highly charged accusations of “appeasement,” along with escalated rhetoric equating the threat from al-Qaida to that posed by the Nazis during World War II and by Communists under Lenin and Stalin. Republicans clearly want the news dominated by alarming discussions of the terrorist threat, as opposed to the highly unpopular war in Iraq, which has receded from view in recent weeks despite continued grim developments.
Publicly showcasing the most dangerous and prized al-Qaida suspects, as the White House did Wednesday, has already provoked exactly the visceral reminders of the 9/11 attacks that the administration believes will provide it the most political punch. As the so-called 9/11 mastermind, Khalid Sheik Mohammed is one of the best-known and most ominous terrorists of all. Virtually every news Web site and cable news program is now repeatedly displaying the photograph of a bedraggled, angry Mohammed, taken after he was dragged out of bed in Pakistan in the middle of the night and detained by American soldiers in March 2003. Short of capturing Osama bin Laden, it is difficult to imagine what could bolster the administration’s political objectives more than having such a vivid and alarming image associated with the 9/11 attacks once again filling television and computer screens everywhere.
The transfer of these detainees to GuantÃ¡namo is also certain to provide the administration with a powerful new weapon as Congress debates various legislative proposals designed to regulate military commissions and interrogation techniques in the wake of the Hamdan ruling. The Bush administration is insisting that Congress do nothing more than simply endorse, legislatively, the military commissions that the administration already created. The administration is also seeking authorization for the CIA to employ controversial interrogation techniques such as prolonged sleep deprivation and waterboarding — a policy Vice President Cheney in particular has fought for fiercely on Capitol Hill. …
… In the past, the administration has depicted such efforts to protect fundamental principles of due process as “giving rights to terrorists.” By announcing that Mohammed himself is now to be one of the detainees to be tried before a GuantÃ¡namo tribunal, the administration is sure to argue that the “mastermind” of the 9/11 attacks does not deserve such privilege. Particularly for those in Congress facing tough reelection battles, the prospect of being depicted as an advocate for Khalid Sheik Mohammed is sure to give them pause when deciding if they will insist on greater safeguards for GuantÃ¡namo detainees.
So here’s where we are. It now seems clear to just about everyone that the other shoe has now dropped. We know the president’s final strategy to keep the subpoenas at bay in 2007 and 2008. Put the worst al Qaida bad guys at Gitmo and force a rushed debate over legislation over how they will be tried. An up or down vote, either the president’s kangaroo courts or nothing.
Dare Democrats to vote for nothing. If they do, mutilate them with 30 seconds. If they don’t, sow dissension among the opposition.
It’s hardly a surprise. This whole White House is the fruit of the poison tree. Their national security policy has always been essentially political. Nothing has changed. It’s what all of us have always predicted.
Meanwhile, the Corner is collapsing in paroxysms of glee over Bush’s brilliant move on detainees today. For reasons I don’t quite understand, Mario Loyola seems to think Bush “stole the terms of debate from the Democrats, and rewrote them, all in a single speech. It will be delightful to watch in coming days and hours as bewildered Democrats try to understand what just hit them, and then sort through the rubble of their anti-Bush national security strategy to see what, if anything, remains.” I’m not terrifically sure what the political implications of today’s move are, but it seems to me that Bush was forced by the Supreme Court to stop holding detainees illegally, and by Congress to stop torturing people. That he’s decided to say he’ll do these things is being greeted as a victory of epic proportions by the Corner crowd. The soft bigotry of low expectations, I guess.
Bush said his administration had “largely completed our questioning of the men” and complained that “the Supreme Court’s recent decision has impaired our ability to prosecute terrorists through military commissions and has put in question the future of the CIA program.”
He was referring to Hamdan v. Rumsfeld, in which the high court recently held that Bush’s military commissions did not comply with the law. …The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. That provision of Geneva prohibits “outrages upon personal dignity” and “humiliating and degrading treatment.”
Bush called on Congress to define these “vague and undefined” terms in Common Article 3 because “our military and intelligence personnel” involved in capture and interrogation “could now be at risk of prosecution under the War Crimes Act.”
Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva’s Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.
The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.
Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and GuantÃ¡namo….
…Throughout his speech, Bush carefully denied his administration had violated any laws during its “tough” interrogations of prisoners. Yet, the very same day, the Pentagon released a new interrogation manual that prohibits techniques including “waterboarding,” which amounts to torture.
The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. The Washington Post recently reported that the Bush administration is quietly circulating draft legislation to eliminate crucial parts of the War Crimes Act. Observers on The Hill say the Administration plans to slip it through Congress this fall while there still is a guaranteed Republican majority–perhaps as part of the military appropriations bill, the proposals for GuantÃ¡namo tribunals or a new catch-all “anti-terrorism” package. …
…As David Cole of the Georgetown University Law Center pointed out in the August 10 issue of The New York Review of Books, the Supreme Court’s decision in Hamdan v. Rusmfeld “suggests that President Bush has already committed a war crime, simply by establishing the [GuantÃ¡namo] military tribunals and subjecting detainees to them” because “the Court found that the tribunals violate Common Article 3–and under the War Crimes Act, any violation of Common Article 3 is a war crime.” A similar argument would indicate that top US officials have also committed war crimes by justifying interrogation methods that, according to the testimony of US military lawyers, also violate Common Article 3.
Lo and behold, the legislation the Administration has circulated on Capitol Hill would decriminalize such acts retroactively.
It is not clear whether the president’s plan will gain traction on Capitol Hill, where lawmakers have been working for weeks on their own proposals for military commissions to try terrorist suspects.
Two of the leading authors of a nearly complete Senate bill, Armed Services Committee Chairman John W. Warner (R-Va.) and Sen. Lindsey Graham (R-S.C.), said their bill differs from the administration plan in key areas â€” including the use of classified and coerced evidence â€” but also said that differences may not be insurmountable.
“The goal for me is to take the committee bill and the administration bill and find middle ground so we can get commissions authorized in a way that will withstand judicial scrutiny, get congressional buy-in, and be a form we can be proud of as a nation to render justice to terrorists,” Graham said.
Details of the Senate-drafted bill are expected to be released in the next two days, Warner said.
Democrats adopted a wait-and-see posture Wednesday, indicating they were more likely to support the Warner-Graham bill than the administration’s plan. Sen. Carl Levin of Michigan, the committee’s top Democrat, said he had “serious concerns” about the Bush bill.
Many Democrats described the policy outlined by Bush as a retreat for the administration. “This is a major reversal from past Bush administration policy, which held that no new law was needed. It is essentially a mea culpa, cloaked in rhetoric,” said Sen. Dianne Feinstein (D-Calif.).
In the House, where Republican members largely have supported the administration’s approach to detainees, Rep. Duncan Hunter (R-El Cajon), chairman of the Armed Services Committee, planned to convene a hearing on the administration’s proposal today. The administration’s proposed system would incorporate many procedures used for U.S. military personnel in court-martial proceedings â€” but with several major distinctions. It would allow hearsay evidence and confessions obtained through coercive interrogations, assuming a judge found the information to be probative and credible.
Since this is going to get nasty very quickly let me try to write it as slowly as I can:
It’s important to respect human rights because of what it says about us, not because of what it says about some of the assholes in custody.