Psyche, Science, and Society

Lawrence Tribe, Obama Constitutional law teacher, joins critics of Manning’s treatment

President Obama was apparently asleep during his Harvard Law classes on Constitutional law. In any case he seems to have missed that pesky ban on cruel and unusual punishment. Now his Constitutional law teacher Lawrence Tribe has joined hundreds of other legal scholars in criticizing the Obama administration’s abusive treatment of alleged Wikileaks source Bradley Manning.

Obama’s constitutional law professor joins group calling Manning’s treatment illegal

By Stephen C. Webster

Nearly 300 experts, scholars and authors demand an end to Manning’s rough treatment

The Harvard professor who taught President Barack Obama about America’s founding document has added his name to a letter damning the treatment of U.S. Army Private Bradley Manning, the lone soldier accused of leaking a vast number of government secrets to anti-secrecy website WikiLeaks.

Harvard Constitutional law professor Laurence Tribe, who quit his post as an adviser to the Obama administration about three months ago, is just one of nearly 300 of the nation’s top legal minds and other experts to sign an open letter calling on the government to treat Bradley Manning as it does other prisoners.

Manning has been held in solitary confinement in the Quantico military brig since July. He gets one hour of exercise per-day, must be checked by guards every five minutes and is forced to sleep naked and undergo a nude inspection every morning. Critics of this treatment say it amounts to torture and an illegal punishment for an American who has not been convicted of a crime.

Tribe wrote that Manning’s treatment “violates his person and his liberty without due process of law and in the way it administers cruel and unusual punishment of a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offenses, not to mention someone merely accused of such offenses”.

“Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention,” the open letter explained. “But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention. The brig psychiatrist began recommending his removal from Prevention of Injury months ago. These claims have not been publicly contested. In an Orwellian twist, the spokesman for the brig commander refused to explain the forced nudity “because to discuss the details would be a violation of Manning’s privacy.”

The letter also cites former U.S. State Dept. spokesman P.J. Crowley, who called the treatment of Manning “counterproductive and stupid,” suggesting it may make prosecuting the soldier even more difficult. Crowley resigned his post after criticizing the administration’s handling of the case

“If Manning is guilty of a crime, let him be tried, convicted, and punished according to law,” the open letter continues. “But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pretrial punishment.”

The document was authored by Bruce Ackerman, of Yale Law School, and Yochai Benkler, of Harvard Law School. It had 295 co-signers at the time of this story’s publication.

The full letter and list of distinguished signatories appears below. It was first published by The New York Review of Books.

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Private Manning’s Humiliation

Bradley Manning is the soldier charged with leaking US government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.

For nine months, Manning has been confined to his cell for twenty-three hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question “Are you OK?” verbally and in the affirmative every five minutes. At night, he is awakened to be asked again “Are you OK?” every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a “smock” under claims of risk to himself that he disputes.

The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application…of… procedures calculated to disrupt profoundly the senses or the personality.”

Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention. The brig psychiatrist began recommending his removal from Prevention of Injury months ago. These claims have not been publicly contested. In an Orwellian twist, the spokesman for the brig commander refused to explain the forced nudity “because to discuss the details would be a violation of Manning’s privacy.”

The administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.

If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pretrial punishment. As the State Department’s P.J. Crowley put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.

The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does, not what it says.

President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions—and immediately end those that cannot withstand the light of day.

Signed:

Bruce Ackerman, Yale Law School
Yochai Benkler, Harvard Law School

Additional Signatories (institutional affiliation, for identification purposes only):

Jack Balkin, Yale Law School
Richard L. Abel, UCLA Law
David Abrams, Harvard Law School
Martha Ackelsberg, Smith College
Julia Adams, Sociology, Yale University
Kirsten Ainley, London School of Economics
Jeffrey Alexander, Yale University
Philip Alston, NYU School of Law
Anne Alstott, Harvard Law School
Elizabeth Anderson, Philosophy and Women’s Studies, University of Michigan
Kevin Anderson, University of California
Scott Anderson, Philosophy, University of British Columbia
Claudia Angelos, NYU School of Law
Donald K. Anton. Australian National University College of Law
Joyce Appleby, History, UCLA
Kwame Anthony Appiah, Princeton University
Stanley Aronowitz, Sociology, CUNY Graduate Center
Jean Maria Arrigo, PhD, social psychologist, Project on Ethics and Art in Testimony
Reuven Avi-Yonah, University of Michigan Law
H. Robert Baker, Georgia State University
Katherine Beckett, University of Washington
Duncan Bell, Politics and International Studies, University of Cambridge
Steve Berenson, Thomas Jefferson School of Law
Michael Bertrand, UNC Chapel Hill
Christoph Bezemek, Public Law, Vienna University of Economics and Business
Michael J. Bosia, Political Science, Saint Michael’s College
Bret Boyce, University of Detroit Mercy School of Law
Rebecca M. Bratspies, CUNY School of Law
Jason Brennan, Philosophy, Brown University
Talbot Brewer, Philosophy, University of Virginia
John Bronsteen, Loyola University Chicago
Peter Brooks, Princeton University
James Robert Brown, University of Toronto
Sande L. Buhai,Loyola Law School, Los Angeles
Ahmed I Bulbulia, Seton Hall Law School
Susannah Camic, University of Wisconsin Law School
Lauren Carasik, Western New England College School of Law
Teri L. Caraway, University of Minnesota
Alexander M. Capron, University of Southern California, Gould School of Law
Michael W. Carroll, Law American University
Marshall Carter-Tripp, Ph.D, Foreign Service Officer, retired
Jonathan Chausovsky, Political Science, SUNY-Fredonia
Carol Chomsky, University of Minnesota Law School
John Clippinger, Berkman Center for Internet and Society
Andrew Jason Cohen, Georgia State University
Lizabeth Cohen, Harvard University
Marjorie Cohn, Thomas Jefferson School of Law
Doug Colbert, Maryland School of Law
Sheila Collins, William Paterson University
Nancy Combs, William& Mary Law School
Stephen A. Conrad, Indiana University Mauer School of Law
Steve Cook, Philosophy, Utica College
Robert Crawford,Arts and Sciences, University of Washington
Thomas P. Crocker, University of South Carolina
Jennifer Curtin, UCI School of Medicine
Deryl D. Dantzler, Walter F. Gorge School of Law of Mercer University
Benjamin G. Davis, University of Toledo College of Law
Rochelle Davis, School of Foreign Service, Georgetown University
Wolfgang Deckers, Richmond University, London
Michelle M. Dempsey, Villanova University School of Law
Wai Chee Dimock, English, Yale University
Sinan Dogramaci, Philosophy, University of Texas at Austin
Zayd Dohrn, Northwestern University
Jason P. Dominguez, Texas Southern University
Judith Donath, Fellow, Berkman Center for Internet and Society
Norman Dorsen, New York University School of Law
Michael W. Doyle, International Affairs, Law and Political Science, Columbia
Bruce T. Draine, Astrophysics, Princeton University
Jay Driskell,History, Hood College
Michael C. Duff, University of Wyoming College of Law
Lisa Duggan, Social and Cultural Analysis, NYU
Cynthia Fuchs Epstein, Graduate Center,CUNY
Stephen M. Engel, PhD, Political Science, Marquette University
Simon Evnine, Philosophy, University of Miami
Mark Fenster, Levin College of Law, University of Florida
Martha Field, Harvard Law School
Justin Fisher, Philosophy, Southern Methodist University
William Fisher, Harvard Law School
Joseph Fishkin, University of Texas School of Law
Mark Fishman, Sociology, Brooklyn College
Martin S. Flaherty, Fordham Law School
George P. Fletcher, Columbia University, School of Law
John Flood, Law and Sociology, University of Westminster
Michael Forman, University of Washington Tacoma
Bryan Frances, Philosophy, Fordham University
Katherine Franke, Columbia Law School
Nancy Fraser, Philosophy and Politics, New School for Social Research
Eric M. Freedman, Hofstra Law School
Monroe H. Freedman, Hofstra University Law School
Kennan Ferguson, University of Wisconsin, MilWaukee
John R. Fitzpatrick, Philosophy, University of Tennessee/Chattanooga
A. Michael Froomkin, University of Miami School of Law
Gerald Frug, Harvard Law School
Louis Furmanski, University of Central Oklahoma
James K. Galbraith, LBJ School of Public Affairs, University of Texas at Austin
Herbert J Gans, Columbia University
William Gardner, Pediatrics, Psychology,& Psychiatry, The Ohio State University
Urs Gasser, Harvard Law School, Berkman Center for Internet and Society
Julius G. Getman, University of Texas Law School
Todd Gitlin, Columbia University
Bob Goodin, Australian National University
Angelina Snodgrass Godoy, Human Rights, University of Washington
David Golove, NYU School of Law
James R. Goetsch Jr., Philosophy, Eckerd College
Thomas Gokey, Art and Information Studies, Syracuse University
Robert W. Gordon, Yale Law School
Stephen E. Gottlieb, Albany Law School
Mark A. Graber, University of Maryland School of Law
Jorie Graham, Harvard University
Roger Green, Pol. Sci. and Pub. Admin., Florida Gulf Coast
Daniel JH Greenwood, Hofstra University School of Law
Christopher L. Griffin, Visiting, Duke Law School
James Grimmelmann, New York Law School
James Gronquist,Charlotte School of Law
Jean Grossholtz, Politics, Mount Holyoke College
Lisa Guenther, Philosophy, Vanderbilt University
Christopher Guzelian, Thomas Jefferson School of Law
Gillian K. Hadfield, Law, Economics, University of Southern California
Jonathan Hafetz, Seton Hall University School of Law
Lisa Hajjar, University of California – Santa Barbara
Susan Hazeldean, Robert M. Cover Fellow, Yale Law School
Dirk t. D. Held, Classics, Connecticut College
Kevin Jon Heller, Melbourne Law School
Lynne Henderson, UNLV–Boyd School of Law (emerita)
Stephen Hetherington, Philosophy, University of New South Wales
Kurt Hochenauer, University of Central Oklahoma
Lonny Hoffman, Univ of Houston Law Center
Michael Hopkins, MHC International Ltd
Nathan Robert Howard, St. Andrews
Marc Morjé Howard, Government, Georgetown University
Kyron Huigens, Cardozo School of Law
Alexandra Huneeus, University of Wisconsin Law School
David Ingram, Philosophy, Loyola University Chicago
David Isenberg, Isen.com
Sheila Jasanoff, Harvard Kennedy School
Christopher Jencks, Harvard Kennedy School
Paula Johnson, Alliant International University
Robert N. Johnson, Philosophy, University of Missouri
Albyn C. Jones, Statistics, Reed College
Lynne Joyrich, Modern Culture and Media, Brown University
David Kairys, Beasley Law School
Eileen Kaufman, Touro Law Center
Kevin B. Kelly, Seton Hall University School of Law
Antti Kauppinen, Philosophy, Trinity College Dublin
Randall Kennedy, Harvard Law School
Daniel Kevles, Yale University
Heidi Kitrosser, University of Minnesota Law School
Gillian R. Knapp, Princeton University
Seth F. Kreimer University of Pennsylvania Law School
Alex Kreit, Thomas Jefferson School of Law
Stefan H. Krieger, Hofstra University School of Law
Mitchell Lasser, Cornell Law School
Mark LeBar, Philosophy, Ohio University
Brian Leiter, University of Chicago
Mary Clare Lennon, Sociology, The Graduate Center, CUNY
George Levine,Rutgers University
Sanford Levinson, University of Texas Law School
Margaret Levi, Pol. Sci., University of Washington and University of Sydney
Tracy Lightcap, Political Science, LaGrange College
Daniel Lipson, Political Science, SUNY New Paltz
Stacy Litz, Drexel University
Fiona de Londras, University College Dublin, Ireland
John Lunstroth, University of Houston Law Center
David Luban, Georgetown University Law Center
Peter Ludlow, Philosophy, Northwestern University
Cecelia Lynch, University of California
David Lyons, Boston University
Colin Maclay, Harvard University, Berkman Center
Joan Mahoney, Emeritus, Wayne State University Law School
Chibli Mallat, Visiting Professor, Harvard Law School
Phil Malone, Harvard Law School
Jane Mansbridge, Harvard Kennedy School
Jeff Manza, Sociology, New York University
Dan Markel, Florida State University
Daniel Markovits, Yale Law School
Richard Markovits, University of Texas Law School
Michael R. Masinter, Nova Southeastern University
Ruth Mason, University of Connecticut School of Law
Rachel A. May, University of South Florida
Jamie Mayerfeld, Political Science, University of Washington
Diane H. Mazur, University of Florida Levin College of Law
Jason Mazzone, Brooklyn Law School
Jeff McMahan, Philosophy, Rutgers University
Richard J. Meagher Jr., Randolph-Macon College
Agustín José Menéndez, Universidad de León and University of Oslo
Hope Metcalf, Yale Law School
Frank I. Michelman, Harvard University
Gary Minda, Brooklyn Law School
John Mikhail, Georgetown University Law Center
Gregg Miller, Political Science, University of Washington
Eben Moglen, Columbia Law School and Software Freedom Law Center
Immanuel Ness, Brooklyn College, City University of New York
Charles Nesson, Harvard University
Joel Ngugi, Law, African Studies, University of Washington
Ralitza Nikolaeva, ISCTE Business School, Lisbon University Institute
John Palfrey, Harvard Law School
James Paradis, Comparative Media Studies, MIT
Emma Perry, London School of Economics and Political Science
Charles Pigden, University of Otago
Adrian du Plessis, Wolfson College, Cambridge University
Patrick S. O’Donnell, Philosophy, Santa Barbara City College
Hans Oberdiek, Philosophy, Swarthmore College
Duane Oldfield, Political Science, Knox College
Michael Paris, Political Science, The College of Staten Island (CUNY)
Philip Pettit, University Professor of Politics and Human Values, Princeton
Frank A. Pasquale, Seton Hall Law School
Matthew Pierce, University of North Carolina
Charles Pigden, Philosophy, University of Otago
Leslie Plachta, MD MPH, Albert Einstein College of Medicine
Thomas Pogge, Yale University
Giovanna Pompele, University of Miami
Joel Pust, Philosophy, University of Delaware
Ulrich K. Preuss, Law& Politics, Hertie School of Governance, Berlin
Margaret Jane Radin, University of Michigan and emerita, Stanford University
Aziz Rana, Cornell University Law School
Gustav Ranis, Yale University
Rahul Rao, School of Oriental& African Studies, University of London
Calair Rasmussen, Affiliation: Political Science, University of Delaware
Daniel Ray, Thomas M. Cooley Law School
Jeff A. Redding, Saint Louis University School of Law
C. D. C. Reeve, Philosophy, University of North Carolina at Chapel Hill
Bryan Register, Philosophy, Texas State University
Robert B. Reich, University of California, Berkeley
Cassandra Burke Robertson, Case Western Reserve University School of Law
John A. Robertson, University of Texas Law School
Corey Robin, Brooklyn College and the CUNY Graduate Center
Clarissa Rojas, CSU Long Beach
Kermit Roosevelt, University of Pennsylvania Law School
Susan Rose-Ackerman, Law, Political Science, Yale University
Norm Rosenberg, History, Macalester College
Clifford Rosky, University of Utah
Brad R. Roth, Poli. Sci. and Law, Wayne State University
Barbara Katz Rothman, Sociology, City University of New York
Bo Rothstein Political Science, University of Gothenburg
Laura L. Rovner,University of Denver College of Law
Donald Rutherford,Philosophy, University of California, San Diego
Leonard Rubenstein, JD, Johns Hopkins Bloomberg School of Public Health
Chester M. Rzadkiewicz, History, University of Louisiana at Lafayette
DeWitt Sage, Flimmaker
Cindy Skach, Comparative Government and Law, Oxford
William J. Talbott, Philosophy, University of Washington
Natsu Taylor Saito, Georgia State University College of Law
Dean Savage, Queens College, Sociology, CUNY
Kent D. Schenkel, New England Law
Kim Scheppele, Princeton Univeristy
Ben Schoenbachler, Psychiatry, University of Louisville
Jeffrey Schnapp, Harvard University
Kenneth Sherrill, Political Science, Hunter College
Claire Snyder-Hall, George Mason University
Jeffrey Selbin, Yale Law School
Wendy Seltzer, Fellow, Princeton Center for Information Technology Policy
Jose M. Sentmanat, Philosophy, Moreno Valley College, California
Omnia El Shakry, History, University of California
Scott Shapiro, Yale University
Stephen Sheehi, Languages, Lit. and Cultures, University of South Carolina
James Silk, Yale Law School
Robert D. Sloane, Boston University School of Law
Ronald C. Slye, Law, Seattle University
Matthew Noah Smith, Philosophy, Yale University
Stephen Samuel Smith, Political Science, Winthrop University
John M. Stewart, Emeritus, Psychology, Northland College
Peter G. Stillman, Vassar College
Alec Stone Sweet, Yale Law School
Robert N. Strassfeld, Case Western Reserve University School of Law
Mateo Taussig-Rubbo, SUNY-Buffalo Law School
Jeanne Theoharis, Brooklyn College of CUNY
Frank Thompson, University of Michigan
Matthew Titolo, West Virginia University College of Law
Massimo de la Torre, University of Hull Law School
John Torpey, CUNY Graduate Center
Vilna Bashi Treitler, Black& Hispanic Studies, Baruch College, City
Laurence H. Tribe, Harvard University
David M. Trubek, University of Wisconsin (emeritus)
Robert L. Tsai, American University, Washington College of Law
Peter Vallentyne, Philosophy, University of Missouri
Joan Vogel, Vermont Law School
Paul Voice, Philosophy, Bennington College
Victor Wallis,Berklee College of Music
David Watkins, Political Science, University of Dayton
Jonathan Weinberg, Wayne State University
Henry Weinstein, Law, Literary Journalism, University of California
Margaret Weir, Political Science,University of California, Berkeley
Christina E. Wells, University of Missouri School of Law
Danielle Wenner, Rice University
Bryan H. Wildenthal, Thomas Jefferson School of Law
Langdon Winner,Rensselaer Polytechnic Institute
Naomi Wolf, author
Lauris Wren, Hofstra Law School
Elizabeth Wurtzel, Attorney and author
Betty Yorburg, Emerita, City University of New York
Benjamin S. Yost, Philosophy, Providence College
Jonathan Zasloff, UCLA School of Law
Michael J. Zimmer, Professor of Law, Loyola University Chicago
Lee Zimmerman, English, Hofstra University
Mary Marsh Zulack, Columbia Law School

2 comments April 11th, 2011

Stewart: Obama restore moral basis of US policy (Not!)

Jon Stewart reminds us of all the wonderful things Obama promised during the campaign: close Guantanamo, end rendition, restore habeas corpus, protecting whistleblowers. Quiet a lesson on deceit. I guess he’s proved the Audacity of Lying:

June 18th, 2010

Lt. Col. David Frakt: I was an al-Qaida attorney

Lt. Col. David Frakt, JAG attorney, finally comes clean about his al-Qaida sympathies:

Confessions of a terrorist sympathizer
A volunteer attorney for Guantanamo detainees comes clean: You got me, I’m shilling for al-Qaida

By David Frakt

What you might have seen: Last Thursday night, Rachel Maddow exposed a group of al-Qaida sympathizers who had served as lawyers on behalf of Guantánamo detainees, revealing that these pro-terrorist attorneys have not only taken over the Department of Jihad (previously known as the Department of Justice) but have even infiltrated our armed forces. One of the military lawyers identified on the broadcast was Air Force Reserve Lt. Col. David Frakt, who served as a defense lawyer for Guantánamo detainees in 2008 and 2009.

What you missed : On Friday, Lt. Col. Frakt agreed to an exclusive interview with Maddow. But shortly after the interview was taped, federal agents, sporting a secret warrant from the FISA Court, forced their way onto the set and confiscated the video footage, citing national security. Fortunately, one of the technicians secretly recorded the interview on his iPhone, which is how Salon obtained the following transcript:

Maddow: Lt. Col. David Frakt is a JAG officer in the U.S. Air Force Reserve and a law professor in California. Professor Frakt, welcome back to the program.

Frakt: Happy to be here, Rachel.

Maddow: Is it true that you’re a terrorist sympathizer?

Frakt: Yes, Rachel. That’s why, in 2008, I volunteered to represent detainees at Guantánamo. The chance to actually be a U.S. government-paid spokesperson for al-Qaida under the guise of “promoting fairness, justice and the rule of law” was just too delicious an opportunity to pass up. I figured the military commissions at Guantánamo would be the perfect soapbox for me to espouse my terrorist ideology.

Maddow: And did your position as a defense counsel give you the opportunities that you were seeking?

Frakt: Not exactly, Rachel. The whole experience was a bit disappointing. Initially, things looked very positive. The first detainee I was assigned to represent, Ali Hamza al Bahlul, was a member of Osama bin Laden’s inner circle and a very committed al-Qaida member. In fact, he has been frequently referred to as the al-Qaida minister of propaganda. So, I thought I’d hit the jackpot.

Maddow: So why didn’t it work out?

Frakt: Well, sadly, Mr. al Bahlul wouldn’t cooperate. He refused to let me represent him in court or speak on his behalf. He said he didn’t trust me because I was an American military officer. In fact, he basically boycotted the proceedings and ordered me to do the same. Can you believe that?

Maddow: That must have been very frustrating for you. Didn’t you also represent another client, a juvenile?

Frakt: Yes, I did represent another young Afghan named Mohammed Jawad, but he was a big disappointment also.

Maddow: How so?

Frakt: Well, as it turned out, he wasn’t a member of al-Qaida, or even the Taliban. In fact, he wasn’t a terrorist at all. He didn’t even know any terrorists! The only real consolation with Mohammed was that the United States had tortured him, so I was able to exploit that for substantial propaganda value, but otherwise, he was a dud.

Maddow: What happened to him?

Frakt: Unfortunately, after I proved that his confession was the product of torture and that he was innocent, he was ordered released by a federal judge. I’m pretty sure she is a terrorist sympathizer as well. In fact, your viewers may be interested to learn that all the judges on the Federal District Court bench in Washington are part of one big al-Qaida sleeper cell.

Maddow: How do you know this?

Frakt: Well, it’s obvious, Rachel. What other explanation is there for the fact that they’ve granted habeas corpus petitions and ordered the release of 33 detainees out of the 44 cases they’ve heard?

Maddow: Could it be that the government didn’t have sufficient evidence?

Frakt: Don’t be naive, Rachel. They’re obviously fellow al-Qaida sympathizers. The only reason they don’t let them all go is they don’t want to blow their cover.

Maddow: I see. One final question, professor Frakt. In your previous appearances on the program, you were in uniform; why aren’t you in uniform today?

Frakt: Well, after I actually won a case at Guantánamo, the Pentagon didn’t want to give me any more cases, so I was forced to leave active duty and return to my civilian position as a law professor.

Maddow: And how is that going?

Frakt: It’s not so bad. At least in this position, I can indoctrinate the impressionable young minds of the next generation of lawyers with my pro-terrorist views, while getting paid to churn out pro-terrorism “scholarship.” Academic freedom has its advantages, although I’m obviously opposed to it for those with differing viewpoints. If I didn’t have to grade papers, this would be the perfect job. Fortunately, I have teaching assistants for that.

Maddow: Well, we appreciate your taking the time to be on our program this evening.

Frakt: Any time, Rachel. I’m always glad to have any opportunity to advance my pro-terrorist agenda.

David Frakt is a lieutenant colonel in the Air Force Reserve who has defended Guantanamo detainees Mohammed Jawad and Ali Hamza al-Bahlul in front of military commissions.

March 9th, 2010

Neal Katyal on Colbert

I missed this at the time. Great. [Neal Katyal was attorney in the Hamdan case. Ge is now the Principal Deputy Solicitor General of the United States. He is one of the attorneys being smeared by Liz Cheney.]

March 7th, 2010

Tangled Up In Yoo

Margaret Flowers and David Swanson rewrote Dylan’s “Tangled Up In Blue”

March 2nd, 2010

David Shuster and Scott Horton dissect John Yoo

David Shuster and Scott Horton dissect John Yoo’s disingenuous defense in the Wall street Journal of his legal advice on warantless wiretapping and attack o the IG’s report:

July 17th, 2009

Hypocrite-In-Chief on preventing torture

For black humor, here is a statement of the man who claims that laws do not apply to government officials who torture, as long as they do it for the US government. He states:

Torture violates United States and international law as well as human dignity.

And also:

My administration is committed to taking concrete actions against torture….

But, of course, one of those “concrete actions” is not enforcing the laws that were violated by so many government officials. He also wants to solicit information from the State Department on ways to prevent torture. He might start by firing the torture supporters and enablers who play such a prominent role in his administration.

The President ought to be ashamed.

Statement by President Barack Obama on United Nations International Day in Support of Torture Victims

June 26, 2009

Twenty-five years ago, the United Nations General Assembly adopted the Convention Against Torture, and twenty-two years ago this very day, the Convention entered into force. The United States’ leading role in the negotiation of the Convention and its subsequent ratification and implementation enjoyed strong bipartisan support.  Today, we join the international community in reaffirming unequivocally the principles behind that Convention, including the core principle that torture is never justified.

Torture violates United States and international law as well as human dignity.  Torture is contrary to the founding documents of our country, and the fundamental values of our people. It diminishes the security of those who carry it out, and surrenders the moral authority that must form the basis for just leadership. That is why the United States must never engage in torture, and must stand against torture wherever it takes place.

My administration is committed to taking concrete actions against torture and to address the needs of its victims.  On my third day in office, I issued an executive order that prohibits torture by the United States.  My budget request for fiscal year 2010 includes continued support for international and domestic groups working to rehabilitate torture victims.

The United States will continue to cooperate with governments and civil society organizations throughout the international community in the fight to end torture.  To this end, I have requested today that the Department of State solicit information from all of our diplomatic missions around the world about effective policies and programs for stopping torture and assisting its victims so that we and our civil society partners can learn from what others have done.  I applaud the courage, compassion and commitment of the many people and organizations doing this vitally important work.

June 28th, 2009

President Carter criticizes Obama’s torture cover-up policies

President Carter, interviewed by CNN, is critical of Obama’s approach to the torture issue. He says the Bush administration is guilty of “crimes against our own laws and against our constitution.”

Carter disagrees with Obama on torture photo release

By David Edwards and Stephen Webster

Former president apparently lends support for “Truth Commission” on prisoner abuse, says torture a crime “against our Constitution”

Former President Jimmy Carter, speaking to CNN on Monday, said he disagrees with President Barack Obama’s decision to withhold photos of prisoner abuse. He added that Obama appears to be resolved against resurrecting the past by punishing those in the Bush administration guilty of what of what Carter himself considers “crimes against our Constitution”

“I respect what his decisions are,” he told CNN’s Campbell Brown. “I don’t have the responsibility to deal with the consequences. But I think that most of his supporters were hoping he would be more open in the revelation of what we’ve done in the past.

“But, ah, he’s made a decision with which I really can’t contend, that he doesn’t want to resurrect the past. He doesn’t want to punish those that are guilty of perpetrating what I consider crimes against our own laws and against our constitution.”

Carter added that while releasing the images may cause “further animosity” toward the United States, the public knowledge that the photos simply exist already serves that cause, whereas instead of seeing them for what they are, the imagination can tend to fill in its own details.

And while Carter repeated several times that he will not criticize Obama for his decision, he did seem to lend support for the so-called “Truth Commission” that’s been discussed in the House and Senate.

Saying that “prosecution is too strong a word,” he added that he would “like to see is a complete examination of what did happen, the identification of any perpetrators of crimes against our own laws or against international law,” said Carter. “And then after all that’s done, decide whether or not there should be any prosecutions.”

Brown’s interview with Carter will air on CNN, Monday night at 8 p.m. EST

June 1st, 2009

Greenwald: Understanding “prolonged detention”

I am still in shock that, having defeated Bush-Cheney, we’re now facing an immense threat of indefinite detention without trial, a.k.a. tyranny. And Obama’s soaring rhetoric will almost certainly get this by a Democratic congress. Glenn Greenwald explains:

Facts and myths about Obama’s preventive detention proposal

By Glenn Greenwald

In the wake of Obama’s speech yesterday, there are vast numbers of new converts who now support indefinite “preventive detention.”  It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of “preventive detention” and Obama’s related detention proposals (military commissions).  I’ll have a podcast discussion on this topic a little bit later today with the ACLU’s Ben Wizner, which I’ll add below, but until then, here are some facts and other points worth noting:

(1) What does “preventive detention” allow?

It’s important to be clear about what “preventive detention” authorizes.  It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding.  That class is merely a subset, perhaps a small subset, of who the Government can detain.  Far more significant, “preventive detention” allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally “dangerous” by the Government for various reasons (such as, as Obama put it yesterday, they “expressed their allegiance to Osama bin Laden” or “otherwise made it clear that they want to kill Americans”).  That’s what “preventive” means:  imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be “combatants.”

Once known, the details of the proposal could — and likely will — make this even more extreme by extending the “preventive detention” power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a “combatant.”  After all, once you accept the rationale on which this proposal is based — namely, that the U.S. Government must, in order to keep us safe, preventively detain “dangerous” people even when they can’t prove they violated any laws — there’s no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly “dangerous” combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.

(2) Are defenders of Obama’s proposals being consistent?

During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush’s executive power expansions by asking them:  ”Do you really want these powers to be exercised by Hillary Clinton or some liberal President?”

Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama’s proposal of “preventive detention,” shouldn’t you first ask yourself three simple questions:

(a) what would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it, and when right-wing groups such as Heritage Foundation were alone in urging a preventive detention law in 2004, did I support them?; and

(c) even if I’m comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents — including Republicans — having the power of indefinite “preventive detention”?

(3) Questions for defenders of Obama’s proposal:

There are many claims being made by defenders of Obama’s proposals which seem quite contradictory and/or without any apparent basis, and I’ve been searching for a defender of those proposals to address these questions:

Bush supporters have long claimed — and many Obama supporters are now insisting as well — that there are hard-core terrorists who cannot be convicted in our civilian courts.  For anyone making that claim, what is the basis for believing that? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion.  What convinced you to believe that genuine terrorists can’t be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can’t possibly release, how do you know they are “dangerous” if they haven’t been tried? Is the Government’s accusation enough for you to assume it’s true?

Above all:  for those justifying Obama’s use of military commissions by arguing that some terrorists can’t be convicted in civilian courts because the evidence against them is “tainted” because it was obtained by Bush’s torture, Obama himself claimed just yesterday that his military commissions also won’t allow such evidence (“We will no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods”).  How does our civilian court’s refusal to consider evidence obtained by torture demonstrate the need for Obama’s military commissions if, as Obama himself claims, Obama’s military commissions also won’t consider evidence obtained by torture?

Finally, don’t virtually all progressives and Democrats argue that torture produces unreliable evidence?  If it’s really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence — evidence we obtained by torture — should be the basis for concluding that someone is so “dangerous” that they belong in prison indefinitely with no trial?  If you don’t trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as “dangerous”?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to “preventive detention” and that his proposal therefore isn’t radical (“other countries have grappled with this question; now, so must we”).  Is that true?

In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question.  In the era of IRA bombings, the British Parliament passed a law allowing the Government to preventively detain terrorist suspects for 14 days — and then either have to charge them or release them.  In 2006, Prime Minister Tony Blair — citing the London subway attacks and the need to “intervene early before a terrorist cell has the opportunity to achieve its goals” — wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days — a mere two weeks more. Reacting to that extremely modest increase, a major political rebellion erupted, with large numbers of Brown’s own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty.  Ultimately, Brown’s 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention powers that are indefinite – meaning without any end, potentially permanent.  There’s no time limit on the “preventive detention.”  Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do.  The suggestion that indefinite preventive detention without charges is some sort of common or traditional scheme is clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it’s normal for ”Prisoners of War” to be held without trials, that argument was deeply misleading.  And it’s no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this “war” will not be over for decades, if ever, which means — unlike for traditional POWs, who are released once the war is over — these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional “POWs” are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a “combatant” was thus minimal.  By contrast, many of the people we accuse in the ”war on terror” of being “combatants” aren’t anywhere near a “battlefield,” aren’t part of any army, aren’t wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being “the worst of the worst” yet ended up being released because they did absolutely nothing wrong.  Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high?  For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now?  Here is what Anne-Marie Slaughter — now Obama’s Director of Policy Planning for the State Department — said about Bush’s “POW” comparison on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But they’ve always been used to try spies that we find behind enemy lines. It’s normally a situation, you’re on the battlefield, you find an enemy spy behind your lines. You can’t ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That’s not this situation. It’s not remotely like it.

As for duration, the U.S. government has repeatedly said that this “war” is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that “unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end” and that we’ll still be fighting this “war” ”a year from now, five years from now, and — in all probability — 10 years from now.”  No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage.  That’s why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

(6) Is it “due process” when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday — when he described the five categories of detainees and the procedures to which each will be subjected — it becomes manifest just how profound a violation of Western conceptions of justice this is.  What Obama is saying is this:  we’ll give real trials only to those detainees we know in advance we will convict. For those we don’t think we can convict in a real court, we’ll get convictions in the military commissions I’m creating.  For those we can’t convict even in my military commissions, we’ll just imprison them anyway with no charges (“preventively detain” them).

Giving trials to people only when you know for sure, in advance, that you’ll get convictions is not due process.  Those are called “show trials.”  In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict.  The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite:  in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest).  The Government picks and chooses which process you get in order to ensure that it always wins. A more warped “system of justice” is hard to imagine.

(7) Can we “be safe” by locking up all the Terrorists with no charges?

Obama stressed yesterday that the “preventive detention” system should be created only through an act of Congress with “a process of periodic review, so that any prolonged detention is carefully evaluated and justified.” That’s certainly better than what Bush did:  namely, preventively detain people with no oversight and no Congressional authorization — in violation of the law.  But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn’t make it justified.  As Professor Amann put it:  ”no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.”  Dan Froomkin said that no matter how many procedures are created, that’s “a dangerously extreme policy proposal.”

Regarding Obama’s “process” justification — and regarding Obama’s primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe — Digby said it best:

We are still in a “war” against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be “the enemy” forever.  The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious. (It’s nice that some sort of official committee will meet once in a while to decide if the war is over or if the prisoner is finally too old to still be a “danger to Americans.”)

There seems to be some misunderstanding about Guantanamo. Somehow people have gotten it into their heads is that it is nothing more than a symbol, which can be dealt with simply by closing the prison. That’s just not true. Guantanamo is a symbol, true, but it’s a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn’t solve the problem.

I know it’s a mess, but the fact is that this isn’t really that difficult, except in the usual beltway kabuki political sense. There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US. It’s patently absurd to obsess over these guys like it makes us even the slightest bit safer to have them under indefinite lock and key so they “can’t kill Americans.”

The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our constitution and our justice systems is what fuels the idea that this country is weak and easily terrified. There is no such thing as a terrorist suspect who is too dangerous to be set free. They are a dime a dozen, they are all over the world and for every one we lock up there will be three to take his place. There is not some finite number of terrorists we can kill or capture and then the “war” will be over and the babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama’s speech.  His resolve to close Guantanamo in the face of all the fear-mongering, like his release of the OLC memos, is commendable.  But the fact that a Democratic President who ran on a platform of restoring America’s standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention — something that is now sure to become a standard view of Democratic politicians and hordes of Obama supporters — is by far the most consequential event yet in the formation of Obama’s civil liberties policies.

May 23rd, 2009

Greenwald: Military commissions subvert the rule of law

Glenn Greenwald explains the problems with Obama’s decision to break his word and create new military commissions:

What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

In response to Obama’s statememt today, Greenwald updated his article:

Obama’s just-issued statement announcing his support for military commissions is here.  I said most of what I think is worth saying about this, but I’ll just add the following:

(1) Can anyone reconcile Obama’s statement today with his August, 2008 statement that we should prosecute accused terrorists ”through our courts and our Uniform Code of Military Justice,” or with the above-excerpted criticisms of Bush’s military commissions?; (2) Obama doesn’t even bother to argue any reasons why we cannot try accused terrorists in our already-extant court system; (3) for those who want to claim that Bush’s torture prevents obtaining convictions in a real court, Obama is purporting to bar the use of evidence obtained via torture, so how would his military commissions address that problem any better than real courts would?; (4) during the Bush era, civilian courts had a far better record of convicting accused terrorists than military commissions did, including convictions of Jose Padilla, Ali al-Marri, Richard Reid, John Walker Lindh, and Zacharais Moussoui, at least three of whom (Padilla, al-Marri and Lindh) were severely mistreated; if we could convict them in real courts, why can’t we convict the other accused terrorists who are actually guilty? (5) if the state is willing to accord due process only when it is guaranteed that it can win, but then creates a new system of diminished due process whenever it believes it cannot win, the guarantee of due process, for rather obvious reasons, becomes completely illusory (“we’ll give due process as long as we’re sure we can win, and if we can’t, we’ll give you something less”).

1 comment May 15th, 2009