Sandy:

What will you post about now that Mr. Bush is gone?

Even if we stipulate, arguendo, that we're "safer" now than 8 years ago, how much more safe might we have been if we had had a different president and vice president not obsessed by ideological fantasies and monumental hubris?

I dunno. How much safer can you get than zero attacks against the United States and the nearly total destruction of al Qaeda?

Try to get past Mr. Bush and enjoy your festivities today.
 

How much safer can you get than zero attacks against the United States
# posted by Bart DePalma : 8:52 AM


You seen to be forgetting the carnage you clowns caused in Iraq.

As for getting past Bush, you are dreaming. We are going to hang his memory around the GOP's neck for the next 50 years.
 

arguably, the worst president in our entire history. (The only competitor is James Buchanan.)

James Buchanan
Woodrow Wilson
FDR
Richard Nixon
George W Bush

Works for me, though I can see some quibbling about the order.
 

I think I've posted this before, but Wikipedia contains a helpful chart of various presidential ratings available here. It's a tad more reliable than David's idiosyncratic choices.
 

David, your list is definitely unique.
 

Completely off topic, but Prof. Levinson, I'm surprised you haven't mentioned Prof. Epps' article in the current Atlantic on the need for amendments to Art. II.
 

Mark Field is certainly correct to mention the Epps article in Atlantic. It's very fine indeed in offering necessary criticisms of our particular presidentialist system. Particularly interesting is his call in effect to emulate the overwhelming majority of American states and have a less "unitary" national system with regard to the President being able to appoint (and require loyalty from) all of his cabinet officials, including, most importantly, the Attorney General.

There's certainly much to debate about.

Mr. Bush may be "gone," but he certainly can't be forgotten by anyone who cares about "the Republican Form of Government" in the old fashioned sense and not the Bush-Cheney-Rove sense of a one-party state run by and for the satraps of the Republican Party.

What Mr. DePalma and other admirers of our former President (what sweet and wonderful words) have to ask if the attack on Iraq and six years
(count them sports fans) of ensuing carnage have made us safer. I know of almost no one who believes the answer is yes or that the attack has anything at all to do with "destroying" al Qaeda.
 

Sandy Levinson said...

Mr. Bush may be "gone," but he certainly can't be forgotten by anyone who cares about "the Republican Form of Government" in the old fashioned sense and not the Bush-Cheney-Rove sense of a one-party state run by and for the satraps of the Republican Party.

Are you kidding? You have just elected a far more powerful one party state.

Pelosi just trashed the Gingrich reforms, which allowed the minority a say in enacting legislation in the House, and returned to the old Dem Congress baronies. She further concentrated power from the baronies into her own office. This monster "stimulus" bill is hers.

And who does the stimulus bill reward? Dem constituencies - government worker unions to the tune of roughly 600,000 new hires, federal bureaucracies, bankrupt Blue state governments, entitlements, green industries and folks who do not pay taxes. Only 10% of this monstrosity is going to infrastructure as Obama promised.

What Mr. DePalma and other admirers of our former President (what sweet and wonderful words) have to ask if the attack on Iraq and six years
(count them sports fans) of ensuing carnage have made us safer.

In case you missed it, Iraq was the graveyard of al Qaeda. It was al Qaeda that attempted to make Iraq its central front on its war against the United States and, in doing so, alienated the Muslim world with their barbarism and were nearly totally destroyed.

Now that al Qaeda in Iraq has been reduced to a few cells on the run, there is no active al Qaeda front left in the world. Their survivors are scattered in the Pakistan tribal areas and in Africa.

I know of almost no one who believes the answer is yes or that the attack has anything at all to do with "destroying" al Qaeda.

Do you know anyone who has actually fought in Iraq?
 

Instead of doing what I ought to have been doing yesterday, I spend a great deal of the afternoon watching the Inaugural, flipping channels between the BBC, Sky News and CNN.

A number of disconnected thoughts went through my mind, one mischievous one being that perhaps secession was not such a great idea in one respect. We only have a coronation every one or two generations, the last being on 2nd June 1953, and we change the real head of the executive with no more ceremony than two motor car journeys between 10 Downing Street and Buckingham Palace, one to take the outgoing Prime Minister to resign and the other taking the incoming Prime Minister to accept his appointment - an example of the aptness of Walter Bagheot's division of our UK constitutional rites into "the Dignified" (that part which is symbolic) and "the Efficient" (the way things actually work and get done).

Students of Bagheot, may recall his criticism of the US Constitutional Settlement: "The American Government calls itself a Government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot FIND the supreme people. You have got a Congress elected for one fixed period, going out perhaps by fixed instalments, which cannot be accelerated or retarded - you have a President chosen for a fixed period, and immovable during that period: all the arrangements are for STATED times. There is no ELASTIC element, everything is rigid, specified, dated. Come what may, you can quicken nothing, and can retard nothing. You have bespoken your Government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it."

I think nothing more epitomises that "fixed term" weakness of the US Constitution than the recent Israeli incursion into Gaza, happening as it did during a transition i.e., at the lowest ebb of US Presidential Power. This Jan 15 cartoon by Steve Bell Only 5 More Bombing Days to Bushlessness says it all: the architect of the illegal invasion of Iraq and the only person who could have restrained the Israeli excesses actually sat back and gave the green light to a mini-replay over Gaza of the "shock and awe" bombing of Baghdad by an Israeli "Defence" Force using American supplied and financed weaponry.

Meanwhile, the President-elect, shackled by the doctrine of "one President at a time in foreign affairs", had to sit back and wait to be presented with the fait accompli which greets him today on his first full day in office: more than 1,300 Palestinian dead, including 460 children and about 100 women; another 5,300 or so wounded - 1,855 of them children and 795 women; traumatised children throughout Gaza who will grow up to hold the USA complicit in the deaths of their parents; some 50,000 people homeless and in shelters with all their meagre possessions pulverised; and, once again, huge resentment of US policy - because the shock waves are still reverberating through the Arab and Muslim world and the result is not "awe" but anger.

One of the better op-eds in th UK press this morning was that of Leonard Doyle in the Independent: The in-tray: Momentous decisions loom on the first day at the office.

This commentary in the Guardian highlights the monumental task of constructing a Middle East peace out of the wreckage Obama's message to the Middle East

And so to this site and its Loathsome Spotted Reptile in residence:-

"In case you missed it, Iraq was the graveyard of al Qaeda. It was al Qaeda that attempted to make Iraq its central front on its war against the United States and, in doing so, alienated the Muslim world with their barbarism and were nearly totally destroyed. Now that al Qaeda in Iraq has been reduced to a few cells on the run, there is no active al Qaeda front left in the world. Their survivors are scattered in the Pakistan tribal areas and in Africa."

What rubbish! This [expletive deleted] advocates torture to suppress a terrorist threat on one thread and claims that a very real and subsisting threat, fuelled by more foreign policy errors of the benighted Bush Administration than I have fingers and toes, is defeated. Cloud-cuckoo-land in the suburbs of Colorado Springs.

Fortunately the Toxic Texan is now consigned to the waste treatment facility of history (would that Bart could join him) and President Obama seems to have a good understanding of the enormity of the domestic and foreign challenges facing his Adminstration.

While the re-election of George Bush was greeted with frustration and, indeed despair, by governments and peoples the world over, this time there is hope and a prospect of change.

Thanks be to God. May it come quickly.
 

If this report in the Guardian newspaper is correct Obama requests Guantánamo Bay tribunals suspension it seems as if the Adminstration has hit the ground running with regard to to one of the legal matters of primary concern: namely the deeply flawed military commissions operating at Guantanamo Bay

I am sure this is not any criticism of the many defence lawyers in the JAG Corps who have laboured hard for their clients under deeply flawed procedural rules, nor of many military prosecutors who seem to have come sometimes come under fairly blatant and improper command pressure to act otherwise than in the interests of justice.

It is to be hoped that the military judges who will have to rule on the motions will have the grace to recognise that the motions are indeed in the interests of justice.
 

Mourad:

Team Obama has been talking about a civilian national security court with similar rules to the military commissions. Based upon the delay caused by the prisoner's attorneys in setting up the military commissions, one can expect that the new Obama courts will take most of his term in office to set up.

If you actually believe that KSM & Co are innocent, then justice delayed, is justice denied.
 

BTW, a solid plurality (+10%) of the American people do not want Gitmo closed.

If the choice presented included the reality that closing Gitmo would require importing these terrorists into the United States, would anyone like to wager that the "NO" vote would spike?
 

If the choice presented included the reality that closing Gitmo would require importing these terrorists into the United States, would anyone like to wager that the "NO" vote would spike?

# posted by Bart DePalma : 10:07 AM

What's your point?
 

[Prof. Levinson]: Mr. Bush may be "gone," but he certainly can't be forgotten by anyone who cares about "the Republican Form of Government" in the old fashioned sense and not the Bush-Cheney-Rove sense of a one-party state run by and for the satraps of the Republican Party.

["Bart" DeBringTheEmperorBack]: Are you kidding? You have just elected a far more powerful one party state.

They're not Rethuglicans that use the Constitution, U.S. statutes, and scientific facts as toilet paper.

I think that, while professing great glee at the idea that Obama's going to continue Dubya's policies, "meet the new boss, same as the old"", "Bart" is just a tad disconbobulated by the fact that Obama seems to consider governing to be a real job, and is reaching out to (at least the less virulent) Republicans and saying "can't we get to gether and get something done???". I suspect that "Bart" is secretly of the Limbaugh school of thought (which sentiment sneaks out from various Rethuglican congresscritters occasionally as well).

Cheers,
 

If you actually believe that KSM & Co are innocent...

No. There's good reason to believe that he's guilty as hell. And good enough reason to have that sorted out in a court of law.

What's disappointing is that the Dubya maladministration may have mucked things up sufficiently that any possible trial will necessarily be a perversion of justice at the least, and will be bad precendent and an unravelling of the constitutional protections that our founders so wisely build into the U.S. system of government. I can only hope that the Obama administration "does the right thing", even if that makes the job harder (or even impossible). There are things more important than just the (probably well-deserved) fate of one man.

Cheers,
 

What LSR Bart does not apparently understand is that securing the due administration of justice in accordance with fundamental human rights norms is not a matter of a popularity contest.

Speaking however of popularity I note that the Washington Post today reports a poll: Majority of Americans Oppose Torture. The percentage differences by party affiliation are interesting: 71% of Democrats oppose -never use - likewise 56% of Independents, but 55 percent, of Republicans said "there are cases in which the U.S. should consider using torture against terrorism".

Civil Rights anybody?

Speaking of terrorism, what makes anyone think that terrorism prosecutions cannot be successful with due process? I do not buy into that thesis. We do it in the UK, other EU nations manage to prosecute and so do US Prosecutors.

Prosecutors have to live with the fact that despite all efforts to lay down interrogation rules in black and white so that even the thickest policeman can understand them. mistakes are made. That is why all UK terrorism interrogations are conducted by specialists and only in a unit where the conditions are strictly controlled and taped. The aim is to prove by positive records that all confessions and admissions are entirely voluntary.

I have little doubt that there is a wealth of material proving KSM is a member of Al Quaida. That charge alone should suffice to buy him life imprisonment. That's the UK maximum penalty for membership. The problem is that some gung-ho cowboy also wanted to execute him as a 9-11 consiprator. I suspect that he might even have confessed to that had the interrogators been patient enough. Perhaps it could even have been proved have been proved some other way. Who knows whether the prosecution actually needed a confession for that purpose. But the gung ho cowboys probably also wanted to interrogate him for other purposes and used torture anyway. That screws up the confessions. But (i) exclusion of evidence obtained by torture does not exclude other evidence (ii) the probability is that the gung ho cowboys who did the torturing were probably the same cowboys who were also counting on Guantanamo being a "legal black hole" where justice could not reach. moral: don't put cowboys in charge of police work in a fake criminal justice system. BTW this "cowboy" metaphor is unfair to real cowboys - its the "all hat and no cattle variety" I'm referring to. The verdict of a kangaroo court is not "justice", if anything it's revenge.

Anyhow, the Commission trials have been suspended for 120 days - see Judge halts 9/11 Guantanamo trial

Note that the 4 Defendants including KSM opposed the suspension: To someone who knows something about the mentality the reason is obvious: they want to be executed by an unfair system so as to become "martyrs" and an example to others.

The intelligent counter terrorism response is to deny them that. Thus the best result possible is a public and impeccably fair trial followed by life imprisonment in a very secure but utterly humane facility. No martyrs, puhleese.

That is why the BBC reports:-
"But there was a sense of relief among defence lawyers, who had criticised the cases as "show trials". Human rights groups also welcomed the decision, as did the European Union. Michele Cercone, a spokesman for the EU Justice and Home Affairs Commission, said the Commission was "very pleased that one of the first actions of Mr Obama has been to turn the page on this sad episode of Guantanamo".

No doubt there will be the "all hat and no cattle response" in due course.
 

Mourad:

Speaking of terrorism, what makes anyone think that terrorism prosecutions cannot be successful with due process? I do not buy into that thesis. We do it in the UK, other EU nations manage to prosecute and so do US Prosecutors.

Well, so did we. We got the Millennium bomber, the '93 WTC bombers, and some of the embassy bombers.

But that was before Dubya started torturing people, poisoning the evidence and making people unfit and/or incompetent to defend themselves.

Cheers,
 

Mourad:

Note that the 4 Defendants including KSM opposed the suspension...

That would be the four "top-billing, marquee" defendants. But they want to be executed. That is their fondest desire right now. Which is all the more reason to try them in a fair and thoroughly transparent manner, and lock them up for life on conviction.

IIRC, there was a bit of confusion a while back, when these defendants had wanted to plead guilty. When informed that such a plea would (or might) result in their ineligibility for the death penalty (IIRC), they reneged on that plea. The last thing they want is to be lawfully and openly convicted and imprisoned, based on clear and convincing evidence presented for all to see (rather than just a court plea), and then locked up for life.

Cheers,
 

Arne: Absolutely right.

Have you all read this Declaration from a former US military prosecutor Veveld Declaration in support of a habeas application (Hat tip Glen Greenwald's blog at Salon).

This is in relation to a person who was a juvenile!!!

Note the deponent's qualifications

I am a Lieutenant Colonel in the US Army Reserve Judge Advocate General’s Corps. Since
the September 2001 attacks, I have served in Bosnia, Africa, Iraq and Afghanistan. My
awards include, among others, the Bronze Star Medal, the Iraqi Campaign Medal, the Joint
Service Commendation Medal, and two Joint Meritorious Unit Awards. In civilian life, I am
a Senior Deputy Attorney General for the Commonwealth of Pennsylvania, and since
graduating from law school, I have tried well over one hundred criminal jury trials."

Then read on. I hope this comes to the attention of the Administration pretty damn soon!
 

Mourad:

BD: In case you missed it, Iraq was the graveyard of al Qaeda. It was al Qaeda that attempted to make Iraq its central front on its war against the United States and, in doing so, alienated the Muslim world with their barbarism and were nearly totally destroyed.

What rubbish!

I provided a detailed and linked timetable of the al Qaeda offensive in Iraq, including links to al Qaeda's own captured documents. If you like, I can repost the quotes from al Qaeda commanders calling Iraq their central front against the US. While it may be disconcerting to have your fictional world view disturbed by reality, I expected a more mature rebuttal from an attorney.

What LSR Bart does not apparently understand is that securing the due administration of justice in accordance with fundamental human rights norms is not a matter of a popularity contest.

Gitmo is a detention center. Closing it and sending the detained terrorists into our country will not change the Military Commission Act or the rules set forth under that act.

Speaking however of popularity I note that the Washington Post today reports a poll: Majority of Americans Oppose Torture.

Most folks oppose the concept of torture. If you instead ask them whether KSM should have been waterboarded for a little over a minute to roll up al Qaeda and thwart several planned attacks against US civilians, I assure you that a substantial majority would go with waterboarding.

Civil Rights anybody?

Foreign enemy combatants have no civil rights. They have privileges granted under the laws of war.

Speaking of terrorism, what makes anyone think that terrorism prosecutions cannot be successful with due process?

If the Gitmo enemy were treated like civilian criminal defendants, half or more would have been dismissed and released back to the battlefield because most of the battlefield evidence would be unavailable or inadmissible in a civilian US courtroom and the remaining evidence would be insufficient to prove a criminal case beyond a reasonable doubt.

We do it in the UK, other EU nations manage to prosecute and so do US Prosecutors.

You do not try foreign enemy combatants based on battlefield evidence. Rather, the EU relies upon the US to take care of that problem as they relied upon the US to take care of their rendered terrorists.

I have little doubt that there is a wealth of material proving KSM is a member of Al Quaida. That charge alone should suffice to buy him life imprisonment. That's the UK maximum penalty for membership.

KSM is not in the UK. Mere membership in al Qaeda is not a criminal offense under the MCA. We actually require evidence of a war crime.

The problem is that some gung-ho cowboy also wanted to execute him as a 9-11 consiprator. I suspect that he might even have confessed to that had the interrogators been patient enough.

Hero, like our military, al Qaeda trains its soldiers to resist interrogation. More to the point, if KSM was treated as a civilian criminal defendant under our system, he would have had a right to silence and to an attorney. Indeed, KSM thought that Mr. Bush would continue the Clinton practice of treating captured al Qaeda as civilian defendants and immediately demanded an attorney. I would have loved to see his face when the CIA laughed at him.

Perhaps it could even have been proved have been proved some other way. Who knows whether the prosecution actually needed a confession for that purpose. But the gung ho cowboys probably also wanted to interrogate him for other purposes and used torture anyway. That screws up the confessions.

"For other purposes?" Are you really this willfully ignorant? The first and foremost purpose of interrogating KSM was to obtain actionable intelligence within a few days before the enemy discovered KSM had been captured and could redeploy. Criminal prosecution of KSM was far far down on the list of considerations, below taking down al Qaeda and saving hundreds of lives.

You are correct that coercive interrogations do not generate confessions that can be admitted in a court of law. The military commissions have been routinely excluding coerced statements as would a civilian court. The problem with civilian courts is the unavailability of foreign witnesses, the inadmissibility of battlefield hearsay, and the disclosure of classified evidence and sources to the enemy.

The intelligent counter terrorism response is to deny them that. Thus the best result possible is a public and impeccably fair trial followed by life imprisonment in a very secure but utterly humane facility. No martyrs, puhleese.

We actually agree here about denying al Qaeda martyrdom executions. KSM should be serving a life sentence spending 23 hours a day alone in a solitary confinement cell with one hour to walk around a small courtyard where he can look at the sky to remember what freedom was like. This is a far more just fate for a mass murdering war criminal than a quick and painless execution.

This is why I am not at all upset that KSM's war crime trial has been delayed yet again. He remains rotting in solitary in either case.
 

According to Politico Holder confirmation delayed, the real reason behind the delay in AG Designate Holder's confirmation is not so much tax but torture apparently at the instance of Senator John Cornyn (Republican, Texas).

"Sen. John Cornyn (R-Texas) is seeking more information from Holder on whether the Department of Justice will pursue criminal prosecutions of "intelligence personnel" involved in detainee interrogations. Cornyn said: "Part of my concern relates to his statements at the hearing with regard to torture and what his intentions are toward our intelligence personnel who were operating in good faith based on their understanding of what the law was."

Apparently, Senator Cornyn served for six years as a District Court Judge in San Antonio before being elected to the Texas Supreme Court in 1990, where he served for seven years. He was Texas Attorney General from 1999-2002.

Presumably, if Senator Cornyn were cognisant of the Vanderveld Declaration (see post above), he might have some cause for concern, or perhaps that kind of treatment is routine for juveniles in the custody of the State of Texas. Perhaps that's what gave Bush & Gonzalez the idea that everything was legitimate.
 

Mourad:

It is common for Senators to gain information on the policies nominated executive officers intend to pursue.

It is probably wise to smoke out Obama now on his intentions in this area.
 

While I am not particularly interested in what LRS Bart thinks or asserts or invents, there is one hell of a lot of misinformation in his posts.

The problem of salafist terrorism is not a single organisation as those of Bart's ilk assume. Remember that the leaders were the mujahiddin recruited in every Muslim country often by or with the blessing of their governments at the behest of Reagan Administration to join the caravan to aid the Mujahiddin in the US proxy war against the Soviets in Afghanistan. Before going into battle they were brainwashed into an extreme peversion of Islam in training camps which were operated much like many other cults and using the same cult techniques. When the war in Afghanistan ended many of the survivors returned to their home countries to start up of develop groups of their own. A fine example of the law of unintended consequences.

There are therefore separate and differing groups in Morocco, Algeria, Egypt, Indonesia, the Philippines, Sudan, East Africa, Pakistan, Afghanistan, India - just about anywhere you care to name. These terrorist groups have no top down command and control structures. Bin Laden and his lieutenants cannot issue orders to such groups. The groups are better described as auto-cephalous. Each will have an "Emir". Such national Emirs may well have known one another in Afghanistan. They have contacts one with another at various levels - they offer facilities to one another for various operations - people, materials, recruits. their have their recruitment agents everywhere there are young Muslims, particularly where there are deprived or disaffected populations.

The recruiters lurk around mosques and universities. They try to interest the disaffected in their version of Islam and then suggest they go to one country or another for further training. For example, there was a lot of recruitment in the UK of 2nd generation Pakistani youth who were sent to Madrassas in Pakistan, The trouble with that is that there is a tradition among Pakistani families of having their sons spend some time at a Madrassa - of which here are thousands in Pakistan. So their parents or relatives did not see much wrong with the idea of taking a year off to go to Pakistan. But the first Madrassa leads to the next and then one in the tribal areas and pretty soon to the training camps for terrorists. With brainwashing all the while. Jobless Algerians recruited in the cities - both in Algeria itself and in France and sent off to the mountains in the Aures where the government has little control. And so forth and so on.

What Al Qaeda has is a kind of primacy of teaching material developed by them is widely disseminated - on the internet, on CD-Rom, on videos, etc. Both religious material and "how to" manuals for bomb-making and the like. Quality varies.

In Algeria, a local group decided to call itself Al Quaida in Algeria as opposed to its previous name, just as some opportunists set up an Al Quaida in Iraq. It's a sort of Macdonalds franchising.

It follows from the local structures and the absence of central command and control, that if one group is wiped out that does not mean than 99 others will not spring up with the same or another somewhere in the world. I personally doubt the problem will be resolved until the Madrassas in Pakistan are reformed. In 1947 there were under 200 madrassas in Pakistan. By 2002 the country had around 15,000 unregistered madrassas with about 2 million students. By 2008 the number was an estimated 40,000. They were greatly expanded under Reagan's favorite dictator General Zia ul Haq who was himself a salfist who placed salafists in key positions in the army and the intelligence services. At the initial indoctrination students are taught to refute Western ideologies in lessons on combating heresy and dangers to Muslim thought and identity. At a later stage they are introduced to the concept of salafist jihad, introduced to jihadis from Afghanistan or Kashmir - and the fervent ones are inspired to join up. Thee are similar setup in other palces.

So for Bart to think that salafist terrorism is dead, just because a few jihadis have been dealt with in Iraq really shows he knows sod all about the problem.

Membership of Al Quaida is not a war crime in the UK.

It is a ordinary offence. The membership of specific groups engaged in terrorism is proscribed by law see the Home Office List of Proscribed Terrorist Groups

That's an example of the "law" approach to terrorism rather than the "war" approach. "Law" - perhaps LSR Bart will recollect what that is.

If the Bush Administration had had the sense to go into Afghanistan with a UN Mandate - there for the asking - then the mandate would have included UN sanction to detain humanely persons who were threat to peace for the duration of the emergency. And, surprise, surprise US military psychologists has some quite good manuals on how to deprogram jihadis based on the methods used to deprogram adherents to those weird cults that seem to proliferate in the USA. The Yemen has done some interesting work along the same lines.

If a fraction of the money Reagan spent on supporting the Pakistan military (or Bush likewise) had been spent on transforming the Pakistani school system, matters would be very different today.

I am more interested in what LSR Bart has to say about the Vanderveld Declaration - no comment about that I see.

And if Senator Comryn does not have a very good idea as to the implications of the rule of law and US obligations under the Torture Convention at least to investigate - I'd be surprised - perhaps not all that surprised though.
 

It is worth remembering precisely what Common Article 3 prescribes in relation to persons detained in the custody of the United States. As I recall, the Bush administration acknowledged on Tuesday that Common Article 3 applies to persons detained in the so-called "war" on terror.

According to the draft of the Obama Administration Executive Order, Common Article 3 will apply specifically to all Guantanamo Bay detainees.

"(3) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict."

It is worth noting that by 3(a) any form of violence is prohibited, therefore this can range from common assault upwards. Obviously there are the same exceptions as would apply to the guardians of any person in custody as regards the use of reasonable force to prevent escape, disorder, self-harm etc;

Under 3(b) even verbal abuse can offend against the prohibition and just about every form of humiliation, or technique used to "soften up" a detainee is barred.

Thus all of the many techniques rumoured or stated in evidence to have been employed against detainees are barred and in truth they always were.

I would be very much against conducting a witch hunt against individuals "at the sharp end" Below the rank of colonel, I think there should be blanket immunity. They should be encouraged to make a clean breast of things as to whence their orders came and through what channels. That would assist a proper investigation of what did happen and how it was instigated which it seems to me is a proper first step to be taken with all due deliberation.

Investigation and acknowledgment that something very wrong happened is necessary because, if not, there will be a temptation to break the rules again in future.

I would like to see prosecutions at the top level - and compensation to all detainees in lieu of damages.
 

"Bart" DeTorquemada:

If the Gitmo enemy were treated like civilian criminal defendants, half or more would have been dismissed and released back to the battlefield because most of the battlefield evidence would be unavailable or inadmissible in a civilian US courtroom and the remaining evidence would be insufficient to prove a criminal case beyond a reasonable doubt.

I note that courts martial have no such difficulties, and no one has agitated for the law of courts martial to be updated to 'keep up with our perilous times'.

It is true that courts martial may not be appropriate for civilian detainees, but such cases can certainly be (and have been) tried in civilian courts.

Cheers,
 

Hero, like our military, al Qaeda trains its soldiers to resist interrogation. More to the point, if KSM was treated as a civilian criminal defendant under our system, he would have had a right to silence and to an attorney. Indeed, KSM thought that Mr. Bush would continue the Clinton practice of treating captured al Qaeda as civilian defendants and immediately demanded an attorney. I would have loved to see his face when the CIA laughed at him.

Requiring confession (or the testimony of two witnesses to the overt act) for conviction is so ... Fourteenth Century.

Cheers,
 

Professor Balkin has kindly posted above the full texts of all the executive orders (incidentally, they are all also posted on the new Administration's White House site Executive Orders page, which looks as though it is going to be a useful resource.

I think we can all agree that the totality of the content of the different Orders signals about as comprehensive a repudiation of the Bush Administration's policy in relation to persons detained in the so called "war" on terror as is possible.

In particular, this section of the "Ensuring Lawful Interrogation" EO is impressively comprehensive:

"Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

(c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001 and January 20, 2009."

[the passage in bold is a real swipe at the Bush OLC]

The Army Field Manual is here [Caution 5.75 MB - 387 pp] and it is in accordance with the Geneva Conventions and other generally accepted human rights standards. By way of example:-

A note at section 5.74
"The following actions will not be approved and cannot be condoned in any circumstances: forcing an individual to perform or simulate sexual acts or to pose in a sexual manner; exposing an individual to outrageously lewd and sexually provocative behavior; intentionally damaging or destroying an individual’s religious articles."

See also "5-75.
"If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to

- Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner.
- Placing hoods or sacks over the head of a detainee; using duct tape over the eyes.
- Applying beatings, electric shock, burns, or other forms of physical pain.
- “Waterboarding.”
- Using military working dogs.
- Inducing hypothermia or heat injury.
- Conducting mock executions.
- Depriving the detainee of necessary food, water, or medical care."

and at Appendix M-30 in relation to "Separation Techniques"

"Care should be taken to protect the detainee from exposure (in accordance with all appropriate standards addressing excessive or inadequate environmental conditions) to—
- Excessive noise.
- Excessive dampness.
- Excessive or inadequate heat, light, or ventilation. - Inadequate bedding and blankets.
- Interrogation activity leadership will periodically monitor the application of this technique.
- Use of separation must not preclude the detainee getting four hours of continuous sleep every 24 hours.
- Oversight should account for moving a detainee from one environment to another (thus a different location) or arrangements to modify the environment within the same location in accordance with the approved interrogation plan."

So, if the Executive Order is complied with, at least future US detention and interrogation wherever in the world will be compliant with Common Article 3 and other international law norms.

The prompt issuance of the Executive Orders and their terms gives one confidence that the people of the USA have fortunately elected a President who truly intends to take care that the laws (including treaties) be faithfully executed.

That made it a little depressing to read some of the inane comments to a post by Eric Posner over at Bagram, anyone? admittedly because some might have got the impression from Professor Posner's rather mischievous post that the President's Executive Order did not mandate the same standards there as it did at Guantanamo Bay. Which is not the case.

Now bearing in mind that treaties are to be faithfully executed, and it appears that there is cogent evidence that many of the mandates referred to in the Army Field Manual sections above were not complied with during the two terms of the Bush mal-Administration, is it really likely that the past abuses can simply be ignored? There are plenty of voices among both Democrats and Republicans calling for a "let's let byegones be byegones" approach.

Where it appears that crimes under the Torture Convention may have occurred, it is mandatory for a signatory state to carry out an investigation with a view to prosecution.

As is pointed out in an Opinio Juris post by Kevin John Keller the view of Phillippe Sands and Dahlia Lithwick on the CAT obligations is as follows:-

"We don’t believe we are in disagreement on the approach to the obligation under CAT, under Articles 7(1) and (2). The obligation is to “submit the case to its competent authorities for the purpose of prosecution”. What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards (”authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”) and the facts of the case, including the prospects for a successful prosecution, may lead to a decision that proceeding to actual prosecution is not justified. Weeks of hearings on Pinochet in the House of Lords and other English courts, in which Arts 5 and 7 were parsed to death, confirm that this is the proper approach to Article 7.

What does this mean for the US right now? In the face of rather compelling evidence that torture occurred — not least the statement last week by Susan Crawford — it appears that the matter should be taken up by a prosecutor. The fact that a US prosecutor might decide upon investigation not to proceed would not, however, prevent a prosecutor in another (foreign) State which is entitled to exercise jurisdiction, from doing so. And if that prosecutor made a request to the US for extradition, on its face the Convention would require such a request to be acceded to, in the context of the relevant US rules (including on extradition of nationals). This is, of course, in essence what happened in the Pinochet case in the UK; the UK prosecutorial authorities decided, in the exercise of their discretion, not to prosecute (as some were calling for) but to proceed to support the application to extradition to Spain."

Would Barack Obama be the kind of president who would ignore that treaty obligation? Methinks not. An investigation does not mean that prosecutions for all will necessarily ensue - but an investigation there ought to be.
 

As the Obama Administration sets out to reverse course on the dark history of unlawful detentions, inhuman and degrading treatment, and even torture in the so-called "war" on terrorism, the loathsome spotted reptiles are of course fighting hard to keep the truth from reaching the American people.

As the New York Times observes, one facet of this is an attempt to whip up a "Nimby" movement: Guatanamo Detainees? Not In My State. Another is the attempt in the Senate led by Sen. John Cornyn (R. Tex) to hold up the confirmation of Attorney-General designate Eric Holder until he commits not to prosecute those involved in Torturgate - see To Prosecute Torture or Not to Prosecute? Cornyn's Holder Holdup Splits GOPers.

John Cornyn is, of course, a former Judge of the Supreme Court and a former Attorney-General of the State of Texas, the judicial murder capital of America, and graduate of St Mary's School of Law in San Antonio, the oldest Catholic School of Law in the United States, where, no doubt, he had ample opportunity to read up on the practices and techniques of the Spanish Inquisition against Jews and Muslims and which operated also in Mexico where it was not abolished until 1820, just 16 years before the Alamo.

One wonders just how many of the Senator's constituents have reason to be worried about an investigation - a certain former president, a former attorney-general and, perhaps, some scions of the Army Medical Service at Fort Sam Houston may have concerns.

In another mischievous post by Eric Posner over at the Volokh Conspiracy Will international law cause the Obama DOJ to prosecute Bush administration officials who may have authorized torture? one finds this:-

"Foreign states have no more incentive to press their Convention Against Torture claims against the Obama administration than the Obama administration has to press domestic anti-torture or war crimes charges against Bush administration officials. International law gives them only self-help remedies for U.S. violations, and few states will want to expend the diplomatic resources on an issue about which they care relatively little...Are foreign states likely to try to embarrass the incoming Obama administration by accusing it of violating section 7 of the CAT? It seems safe to conclude that if the Obama administration chooses not to prosecute and thus to violate CAT, other states will, in essence, “settle” their claims for a price of zero.

Foreign states are in a difficult position, akin to the difficult position of the Obama administration. Just as domestic prosecutions risk exposing the complicity of Democratic politicians in the Bush administration’s interrogation policies, foreign international law claims would risk a similar sort of blowback, exposing and highlighting the routine CAT violations of foreign states. I am not just referring to European complicity in CIA renditions. Putting aside the European countries and a handful of other countries, virtually every state in the world engages in systematic torture of political opponents, suspected criminals, insurgents, and many others. Yet the legal sanctions being imposed on Russia, China, Indonesia, Egypt, and India are zilch...."

The good Professor might do well to read this article in today's Guardian: Government urged to come clean on co-operation over CIA secret prisons:-

"The government is coming under pressure to reveal the full extent of its co-operation with the CIA's secret prison network and what it knew about the torture of prisoners at Guantánamo Bay, including a British resident.

MPs and the courts are seeking disclosure of documents that would shed light on how ministers and officials - including the security and intelligence agencies - responded behind the scenes to US practices they publicly abhorred....

British officials said they were engaged in urgent discussions with the US about the future of Mohamed, who has been at the centre of a long-running case in the high court. It ruled last year that an MI5 officer participated in the unlawful interrogation of Mohamed in Pakistan in 2002. In a series of judgments, Lord Justice Thomas and Mr Justice Lloyd Jones condemned as "deeply disturbing" a refusal by the US to disclose evidence about Mohamed's treatment and secret rendition to Morocco, Afghanistan, and Guantánamo Bay. They also said claims by Mohamed's lawyers that the US was refusing to release the papers because "torturers do not readily hand over evidence of their conduct" required an answer.

Miliband conceded there was an "arguable case" that Mohamed had been subjected to torture and inhuman treatment, yet he has refused to disclose information about CIA practices.

The high court judges have taken the extraordinary step of inviting the Guardian with other media groups to challenge earlier decisions to hold much of the court hearings on the case in camera.

The high court heard that the cross-party parliamentary intelligence and security committee was not given the full picture when it first questioned security and intelligence officials. It is expected to criticise the government over its approach towards the Bush administration's rendition and interrogation policies in its latest annual report, which is now being vetted by Downing Street prior to publication.

Whitehall official suggested yesterday that they had now learned the lessons. However, Andrew Tyrie, Conservative MP and chairman of the all-party group on extraordinary rendition, said: "We need to establish the truth on the US programme and UK involvement in it."

This is a reference to the case of Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs in which lawyers for Binyan Mohamed, a detainee in Guantanamo Bay, sought disclosure of papers held by the UK Government for the purpose of his defence to Military Commission proceedings. The case was noteworthy for three things:-

(i) a UK Security Service Officer gave evidence and declined to answer questions on the grounds that they might incriminate him;

(ii) the court itself read the papers before deciding they should be disclosed;

(iii) a US DoD lawyer wrote a letter to the UK authorities threatening that the USA would withdraw intelligence co-operation with the UK if the UK Courts ordered disclosure.

In relation to (iii), I venture to suggest that this was an extremely stupid move. HM Judges when sitting in Court defer only to the Queen and they react very badly to attempts to pressurise them by Ministers, let alone foreign lawyers. The outcome was that the papers had to be disclosed in the USA, the Attorney General was directed to commence an investigation with a view to the prosecution of any persons complicit in torture and, as the Guardian article emphasises, the Court is to hear submissions as to whether the Judgement on the proceedings in camera should be made public in whole or in part. Further, the Intelligence and Security Committee of Parliament, who do have the right to see all documents, appear to have got their teeth into the case.

Professor Posner is right to surmise that there are European States where governments may fear their complicity coming to light. The UK is one such and it is widely believed that Poland too will have problems. The problem is, however, that European Parliaments and Judges are not going to be as deferential as the US institutions have thus far been - perhaps because there are still survivors of state sponsored torture alive in just about every country of Europe.

I think there must be an investigation for the entirely practical reason that it will be less damaging to US interests to have a full and frank recognition of what went wrong than to have the truth come out in dribs and drabs as multiple investigations take place in 25 countries in Europe and elsewhere.
 

This story in the Washington Independent site Torture Case Tests Obama Secrecy Policy takes up the story of some Bush Administration "rendition to torture" cases which do not look as if they are going away.

Binyam Mohamed is of course a UK resident presently detained in Guantanamo Bay who successfully litigated in the UK to force the UK government to disclose documents corroborating his case that he had been the victim of extraordinary rendition and torture. Notwithstanding the threat from a US Bush DoD lawyer that US national security intelligence co-operation with the UK would be imperilled if the Court made an order, the English Court said that it would be prepared to make an Order unless the documents were disclosed in the US proceedings and they were. The English Attorney-General has also started a criminal investigation.

On Sunday, the Washington Post ran an article claiming that the Guantanamo detainee files were in a mess Guantanamo Case Files in Disarray, and of course that was precisely the excuse the Bush administration's lawyers used to seek continuances and the like in the pending habeas corpus review cases. It seemed at the time that the requests for indulgence were tantamount to an admission that the Bush Administration people had relied on their "legal back hole" theory and had never expected to have to justify the detentions in court.

It would be hardly surprising if now at lower levels in the DoD and the CIA there will be immense institutional resistance to disclosure of the sordid details of the operations - but there are other sources the new brooms in the Obama Administration can go to.

For example, there has been much investigation in Europe into the extraordinary rendition flights and perhaps those nice folks at Boeing, in particular its susidiary Jeppesen International Trip Planning aka The CIA's Travel Agent can provide all the flight plans, dates and routings. Thus far an ACLU backed complaint against Jeppesen Jeppesen Complaint has been met with the invocation of state secrets privilege.

Well, at least in Binyan Mohamed's case, the combination of the documents from the UK and the flight information should give the new Administration people some idea where the truth about what happened to Binyan Mohamed may be found. And by the way, the UK has officially requested his return.

Meanwhile former Bush AG, Alberto Gonzalez is reported as being of the opinion that he will not be prosecuted Alberto Gonzales: I Don't Think Obama AG Will Prosecute Me and perhaps his confidence is not all that misplaced - after all any decent prosecutor would want to target the organ grinder rather than the monkey - although the epithet "organ grinder" may be a bit sick, given what may have happened to some of the detainees on those flights.