Psyche, Science, and Society

Accountability: Benjamin on Truuth Commission and Obama

Mark Benjamin, in Salon, writes what he is hearing of Obama’s plans for a truth Commission, with possible, though not that likely, future prosecutions. Hanging over the latter is the threat of a blanket Bush pardon for those involved in the torture program:

Obama’s plans for probing Bush torture

President Bush could pardon officials involved in brutal interrogations — but he may also face a sweeping investigation under the new president.

By Mark Benjamin

WASHINGTON — With growing talk in Washington that President Bush may be considering an unprecedented “blanket pardon” for people involved in his administration’s brutal interrogation policies, advisors to Barack Obama are pressing ahead with plans for a nonpartisan commission to investigate alleged abuses under Bush.

The Obama plan, first revealed by Salon in August, would emphasize fact-finding investigation over prosecution. It is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. The plan would not rule out future prosecutions, but would delay a decision on that matter until all essential facts can be unearthed. Between the time necessary for the investigative process and the daunting array of policy problems Obama will face upon taking office, any decision on prosecutions probably would not come until a second Obama presidential term, should there be one.

The proposed commission — similar in thrust to a Democratic investigation proposal first uncovered by Salon in July — would examine a broad scope of activities, including detention, torture and extraordinary rendition, the practice of snatching suspected terrorists off the street and whisking them off to a third country for abusive interrogations. The commission might also pry into the claims by the White House — widely rejected by experienced interrogators — that abusive interrogations are an effective and necessary intelligence tool.

A common view among those involved with the talks is that any early effort to prosecute Bush administration officials would likely devolve quickly into ugly and fruitless partisan warfare. Second is that even if Obama decided he had the appetite for it, prosecutions in this arena are problematic at best: A series of memos from the Bush Justice Department approved the harsh tactics, and Congress changed the War Crimes Act in 2006, making prosecutions of individuals involved in interrogations more difficult.

Instead, a commission empowered by Congress would have the authority to compel witnesses to testify and even to grant immunity in exchange for information. Should a particularly ugly picture emerge, the option of prosecutions would still theoretically be on the table later, however unlikely.

In Obama’s camp, there is a sense among some that such a commission would essentially mean letting Bush get away with crimes. “People have called for criminal investigations,” one person familiar with the talks told me this summer as plans got under way. On Wednesday, a person participating in the talks confirmed that some people involved in the planning felt strongly that the commission would amount to “bullshit” and that Bush officials should be prosecuted to the full extent of the law.

But few think prosecutions are realistic, given the formidable legal hurdles and the huge policy problems competing for Obama’s attention. Among them is the complicated task of closing down the military prison at Guantánamo Bay, which Obama advisors say is a priority. Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them.

Further complicating the Obama team’s planning is uncertainty about what President Bush might do. On the one hand, a blanket pardon for anyone involved in the interrogations could be viewed by the public as a tacit admission of colossal wrongdoing — after years of public denial — which would do nothing to help Bush’s tarnished legacy. Yet, if the administration fears an investigation will follow Bush out the door in January, they may not want to leave officials exposed to potentially revealing criminal proceedings. Bush might seek to frame a blanket pardon as a preemptive strike against wrongheaded, partisan retribution.

Constitutional scholars say a pardon of this kind would be an unprecedented move — the prospective pardon of not just individuals but entire categories of people, perhaps numbering in the thousands, for carrying out the president’s orders , which the White House has argued all along were legal.

Those scholars agree, however, that Article II of the Constitution gives Bush much latitude: There is no authority that can stop the president from doing so if he wishes, and there is no outside check or balance to revisit such a decision, however controversial it may be. “The president can do with pardoning power whatever he wants,” explained University of Wisconsin Law School professor Stanley Kutler. “It is complete and plenary unto itself.”

A blanket pardon from Bush could cover, for example, anyone who participated in, had knowledge of, or received information about Bush’s interrogation program during the so-called war on terror. Not only are there potentially too many people to name without risking missing somebody, but some of the names are presumably classified.

“The classic pardon is an identifiable individual; here you are talking about potentially thousands of people involved in illegal activities,” explained Jonathan Turley, a professor at George Washington Law School. A blanket pardon of this variety, Turley said, “would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity.”

There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision,” said Kermit Roosevelt at the University of Pennsylvania Law School. “If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.” (Roosevelt represents a detainee held at Guantánamo.)

The politics of it would be fraught with danger, however, and could so blemish Bush’s legacy that some doubt he would go so far. “A pardon is an admission of guilt,” noted Donald Kettl, a political science professor at the University of Pennsylvania. Bush has argued for years that his interrogation program was perfectly legal. With a pardon, Kettl said, Bush is essentially saying, “Gee, maybe we did not do the right thing.”

It is not entirely unprecedented for a president to grant a pardon based on a category of behavior, rather than pardoning an individual by name. The day after his inauguration, President Carter pardoned all those who avoided the Vietnam draft by failing to register or by fleeing to Canada. George Washington pardoned participants in the 1794 Whiskey Rebellion. Andrew Johnson pardoned Confederate soldiers in 1865.

But these were pardons designed to foster reconciliation, handed out to categories of individuals who acted on their own conscience, rather than the president’s own allegedly illegal orders. “This would be a different deal completely,” explained Kettl. “It would be anticipating that people thought the official policy of the administration was wrong.”

Add comment November 14th, 2008

Accountability: Prominent talk show host calls for Hague trial for Cheney

As the Bush regime slowly ends, the discussion about how to deal with its multitude of human rights violations has commenced in earnest. From human rights blog Never In Our Names comes word that Gene Burn, prominent West-Coast talk show figure, has changed his mind and now believes that an international tribunal to try Vice President Cheney for torture is justified:

Influential Talk-Show Host Shifts Position: Cheney To The Hague

By blueness

For 30 straight years KGO has been the most listened-to AM radio station in the San Francisco Bay Area. From dusk till dawn, it can also be heard throughout the entirety of the west coast, from Canada to Mexico. KGO pioneered the talk-radio format, long before it was seized and exploited by the rightwing noise machine. The station employs local, non-syndicated hosts, all of whom consistently rank first in their time slots. Hosts run the left-coast political gamut, from the vacuous, muddle-headed centrist Ronn Owens, to the fiery renegade Ray Taliaferro, who contends that a close reading of scripture discloses that Jesus was gay, and most commonly refers to George II as “that idiot out of Texas.”

Occupying the 7-10 p.m. time slot is Gene Burns, who has been in radio for more than 40 years, the past 14 at KGO. Burns is a recently lapsed Libertarian; he sought the party’s presidential nomination in 1984, but, after supporting John Kerry in 2004, this year he made the great leap, and registered as a Democrat. He is a pedant, and something of a blowhard, but is extremely influential with more moderate listeners put off by the station’s fire-breathing lefties. Burns has consistently opposed impeachment proceedings against George II and Darth Cheney as frivolous and unwarranted: these men have not, to his mind, committed impeachable offenses. Challenged by callers contending that these men approved the torture of fellow human beings, Burns has maintained that the United States has not tortured; even waterboarding, to him, does not constitute torture.

Wednesday night, all this changed. After viewing on his local PBS affiliate the documentary Torturing Democracy, Burns told his listeners, he realized he had been wrong. The United States has tortured. It has also engaged in extraordinary renditions, for the purpose of torture. While Burns still believes impeachment to be a non-starter, he has concluded that, in the treatment of prisoners at Guantanamo Bay and in other sites overseas, Dick Cheney is guilty of war crimes and crimes against humanity, and should be brought to trial before an international tribunal at The Hague. With the expectation that, in the course of Cheney mounting his defense, he may implicate George II as equally culpable in the commission of the same crimes.

Burns urged his listeners to view Torturing Democracy, which is available, in full, here. Burns can be an obstinate cuss, not often inclined to admit error: this documentary, which I have not seen, must indeed be powerful. For Burns was heretofore no member of our choir: prior to viewing Torturing Democracy, he was adamant that no such crimes had been committed “in our names.”

I’m not here to scoff at him; I’m here to praise him. Admitting to error is very hard: I struggle with it, all the time, myself. Our outgoing president, of course, famously could not admit to a single mistake made in his first term. Burns is a better man than that. He was eloquent, tonight, in the explanation of his evolution; below is a transcript of some of what he said, taken from the station’s archived audio (which will be available here, if you’d like to listen yourself, until 10 p.m. PST on Thursday).

I now believe that some international human rights organization ought to open an investigation of the Bush administration, I think focused on Vice President Dick Cheney, and attempt to bring charges against Cheney in the international court of justice at The Hague, for war crimes. Based on the manner in which we have treated prisoners at Guantanamo Bay, and the manner in which we have engaged in illegal rendition, that is, surreptitiously kidnapping prisoners and flying them to foreign countries where they could be tortured by foreign agents who do not follow the same civilized standards to which we subscribe.

I’ve always said that I’ve thought that even at Guantanamo Bay the United States was careful to stay on this side of torture. In fact, you may recall that on a couple of occasions we got into a spirited debate on this program about waterboarding, and whether waterboarding was torture. And I took the position that it was not torture, that it was simulated drowning, and that if that produced information which preserved our national security, I thought it was permissible.

And then I saw Torturing Democracy.

And I’m afraid, now that I have seen what I have seen, that I was wrong about that. It looks to me, based on this documentary, as if in fact we have engaged in behavior and practices at Guantanamo Bay, and in these illegal renditions, that are violations of the international human rights code.

And I believe that Dick Cheney is responsible. I believe that he was the agent of the United States government charged with developing the methodology used at Guantanamo Bay, supervising it for the administration, and indulging in practices which are in fact violations of human rights.

Why not George Bush? I think that it would be easier to nail Cheney. And there’s a certain method to this madness: that if you go after Cheney–seriously, I’m talking now about a serious investigation by an international tribunal, and charges brought against him in the international court, so that he would be subject to arrest, and trial, just as Milosevic and some of the people involved in these behaviors in the Balkans were–that that would force Cheney, in his defense, to disclose the degree to which the president, George W. Bush, was culpable in any of this, if culpable at all.

I really found this documentary, Torturing Democracy, very, very disturbing. And I guess the reason that heretofore I have not been such an easy mark on the matter of this kind of charge is that I don’t think I ever saw an organized, systematized review of what we did, and how we did it, as well presented as it was in this documentary.

And it grieves me to say, as an American citizen, that I believe the leadership of our country is responsible for crimes against humanity. But, you know, we can’t be trumpeting about the behavior of others, like Milosevic, and others, if we do not expect ourselves to be held to a similar high standard.

And no matter our desire to preserve and protect our national security, which is uppermost in the minds of all of us, and something which our leaders are sworn to do by oath, if to do that we have to engage in torture, we should not do it.

And as this documentary points out, there is no indication that any significant, credible evidence that made us safer was ever developed or deduced or adduced during these sessions. And in my view, some of these sessions went over the line.

And I’d like to see a panel of international court judges review the evidence. They might not agree. They might find Vice President Cheney not guilty–who knows? But I’d certainly like to see a trial of Dick Cheney as the responsible party in the United States government for developing tortures that were violations of our obligations under international concordants and treaties involving human rights violations.

If you keep listening, you will hear what we–and now he–are up against. The very first caller, an aging veteran, announced that Burns had “disgraced” himself; that “war is hell” and thus such things happen; that to sound such views but two days after Veterans Day constituted an offense against the United States. The caller concluded by saying that it was his belief that Burns should be jailed. Burns, who has a temper, invited the caller to go out and purchase some handcuffs, and then come down to the station to see whether he might succeed in locking them around Burns’ wrists.

A little later came the opposite end of the spectrum: a caller who sneered at Burns for coming too late to the issue, and demanded that Cheney be “publicly executed.”

Somewhere between these extremes must steer the serious people.

Can Dick Cheney be made to stand before The Hague? Maybe. Maybe not. The concept of international criminal tribunals is so fresh, and Darth Cheney is an awfully fat fish. But it is certain that every step taken towards such a day, even if that day is in the end never reached, helps insure that future Cheneys will be less likely to engage in similar behavior. And it is equally true that every sober, serious voice that states that Cheney deserves to be brought before The Hague, helps to push that position farther from fringoid fantasy, and closer to common wisdom.

So welcome to our world, Mr. Burns. And thank you.

Add comment November 13th, 2008

Human rights groups to Europe: Accept Guantanamo detainees

One of the major problems in closing Guantanamo is that no one will take many of the detainees who the U.S. admits are not a danger but who are in danger if they are sent back home. A coalition of human rights groups has asked European countries to take and care for these individuals:

Human Rights Groups Call on European Governments to Offer Humanitarian Protection to Guantanamo Detainees

(Berlin, November 10, 2008) — Five leading human rights groups today call on European governments to provide humanitarian protection to Guantánamo detainees who will not be charged with any crime but cannot be returned to their countries of origin for fear of torture or other serious human rights violations. European governments should agree to accept them into their countries and ensure they are provided with adequate support.

Amnesty International, the Center for Constitutional Rights, Human Rights Watch, Reprieve and the International Federation for Human Rights urge governments to work with the new US administration to take this important step in order to facilitate the closure of the detention facility at Guantánamo.

“We must find a solution to the 50 men imprisoned at Guantánamo simply because they have nowhere to go,” said Emi MacLean, Staff Attorney at the Center for Constitutional Rights. “The US government has twice previously tried to send our client, Abdul Ra’ouf Al Qassim to Libya even though it is undisputed that he would likely be tortured, or disappeared into Libyan jails, if returned. His survival depends on the simple humanitarian gesture of another country opening their doors to him.”

“Everyone appears to rightly agree that Guantánamo must be closed, and President-elect Obama has said that he will close it,” said Daniel Gorevan, Counter Terror with Justice Campaign Manager at Amnesty International. “Clearly, other governments can help make this happen by offering protection to individuals who cannot be released to their own countries. This would have a double effect: helping to end the ordeal of an individual unlawfully held in violation of his human rights, and helping end the international human rights scandal that is Guantánamo.”

“This is a key opportunity for both sides of the Atlantic to move beyond the misguided acts of the ‘war on terror’: rendition, secret detention, and torture,” said Cori Crider, Staff Attorney at Reprieve.  “President-elect Obama says he will close Guantánamo — the question is when and how. One of Reprieve’s clients was sent back to Tunisia, drugged, hit, and threatened with the rape of his wife and daughter. Another is fighting, even now, to stay in Guantánamo because Tunisia threatened him with ‘water torture in the barrel.’ The US still asserts total authority to send him back. Europe can send a powerful message by reaching out to Obama and providing a safe alternative for these few people.”

“President-elect Obama has committed to closing Guantánamo, but he is going to need Europe’s help,” said Joanne Mariner, Terrorism and Counterterrorism Director at Human Rights Watch. “European governments could provide much-needed assistance by agreeing to take in some of the detainees who cannot be sent back home.”

“FIDH and CCR mobilised 77 members of the European Parliament who issued a joint call to EU member States to offer relocation for Guantanamo detainees. As an important strategic partner of the US, the EU should help the Administration relocate these men,” said Souhayr Belhassen, FIDH President.

Background

It is the primary responsibility of the United States to find solutions for all those held at Guantánamo, as it was the USA that brought them to the detention facility and is holding them there unlawfully. If the USA is not planning to charge and try them in ordinary US courts, and cannot release them to their own countries safely, it should immediately offer them an opportunity to be released into the USA.

It is also clear, however, that governments in Europe and elsewhere can and should play a vital role in providing such individuals with humanitarian protection in the form of a safe place to get on with their lives after years of suffering. The involvement of European governments will be instrumental in reaching a solution to this problem — a solution that is critical to the international aim of closing Guantánamo.

Around 50 of the detainees currently held in Guantánamo cannot lawfully be sent back to their countries of origin because they would face a real risk of human rights violations such as torture or other ill-treatment. They come from countries including China, Libya, Russia, Tunisia, and Uzbekistan.

The human rights groups made their call after a two-day closed strategic workshop in Berlin, convened by the NGOs with other international actors active on the issue of humanitarian protection.

Statements of Support from International Actors

“We are at a critical juncture. It is now possible to anticipate the closing of Guantanamo, the end to the US practice of executive detention, and the re-affirmation of fundamental human rights principles, including the prohibition of torture in all circumstances. But European engagement and support will be essential to get there. One step that European governments should take is to accept into their borders the small number of men at Guantanamo who cannot be repatriated safely. Guantanamo cannot be closed until these men have a country which will accept them, and where their lives and liberty are not in jeopardy.”
Manfred Nowak, UN Special Rapporteur on Torture

“I urge European governments to open their doors to a small number of men who fear persecution or torture if transferred to their home countries. Such assistance is both the right thing to do, and of critical importance in our attempts to push for the immediate closure of Guantanamo Bay.”
Thomas Hammerberg, Human Rights Commissioner of the Council of Europe

“The efforts must be renewed now with European governments and the U.S. government working to close Guantanamo and offer protection to those unable to be returned safely to their own countries.  The efforts of human rights NGOs are coming at the best moment, in order to use the next months in the most positive way.”
Anne-Marie Lizin, Special Representative on Guantanamo for the Parliamentary Assembly of the Organization for Security and Cooperation in Europe (OSCE), and Vice-President of the Parliamentary Assembly of the OSCE.

Add comment November 11th, 2008

Change or continuity in intelligence policy?

The Wall Street Journal has a depressing story. Among the thoughts in here:

The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight.

Let’s hope they’re totally wrong:

Intelligence Policy to Stay Largely Intact

By Siobhan Gorman

WASHINGTON — President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say, an approach that is almost certain to create tension within the Democratic Party.

Civil-liberties groups were among those outraged that the White House sanctioned the use of harsh intelligence techniques — which some consider torture — by the Central Intelligence Agency, and expanded domestic spy powers. These groups are demanding quick action to reverse these policies.

Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.

“He’s going to take a very centrist approach to these issues,” said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. “Whenever an administration swings too far on the spectrum left or right, we end up getting ourselves in big trouble.”

On the campaign trail, Mr. Obama criticized many of President George W. Bush’s counterterrorism policies. He condemned Mr. Bush for promoting “excessive secrecy, indefinite detention, warrantless wiretapping and ‘enhanced interrogation techniques’ like simulated drowning that qualify as torture through any careful measure of the law or appeal to human decency.”

As a candidate, Mr. Obama said the CIA’s interrogation program should adhere to the same rules that apply to the military, which would prohibit the use of techniques such as waterboarding. He has also said the program should be investigated.

Yet he more recently voted for a White House-backed law to expand eavesdropping powers for the National Security Agency. Mr. Obama said he opposed providing legal immunity to telecommunications companies that aided warrantless surveillance, but ultimately voted for the bill, which included an immunity provision.

The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight.

The intelligence-transition team is led by former National Counterterrorism Center chief John Brennan and former CIA intelligence-analysis director Jami Miscik, say officials close to the matter. Mr. Brennan is viewed as a potential candidate for a top intelligence post. Ms. Miscik left amid a slew of departures from the CIA under then-Director Porter Goss.

Advisers caution that few decisions will be made until the team gets a better picture of how the Bush administration actually goes about gathering intelligence, including covert programs, and there could be a greater shift after a full review.

The Obama team plans to review secret and public executive orders and recent Justice Department guidelines that eased restrictions on domestic intelligence collection. “They’ll be looking at existing executive orders, then making sure from Jan. 20 on there’s going to be appropriate executive-branch oversight of intelligence functions,” Mr. Brennan said in an interview shortly before Election Day.

The early transition effort is winning praise from moderate Democrats. “He’s surrounded himself with excellent people — an excellent bipartisan group,” said Rep. Jane Harman, a California Democrat who is chairwoman of the House homeland-security subcommittee on intelligence.

Civil-liberties and human-rights advocates, who helped Mr. Obama win election, are seeking both a reversal of Bush administration policies and expanded investigations into possible illegal actions when the administration sought to track down terrorists after the attacks of Sept. 11, 2001.

“We need to understand what happened,” said Caroline Fredrickson, director of the American Civil Liberties Union’s Washington office.

Most of those being discussed as candidates for director of national intelligence and director of the CIA have staked out a middle ground between safeguarding civil liberties and aggressively pursuing nontraditional adversaries.

Mr. Brennan is a leading contender for one of the two jobs, say some advisers. He declined to comment on personnel matters. Gen. James L. Jones, a former North Atlantic Treaty Organization commander; Thomas Fingar, the chief of analysis for the intelligence director; Joan A. Dempsey, who served in top intelligence and Pentagon posts; former Rep. Tim Roemer of Indiana, who served on the 9/11 Commission; and Ms. Harman have also been mentioned. Ms. Harman has also been cited as a potential secretary of homeland security.

“I’m very flattered that some folks somewhere think I would be qualified for a number of positions,” she said. “But I’m also looking forward to an eighth term in Congress working on many of these issues.”

None of the others could be reached for comment.

Another option for Mr. Obama would be to retain current intelligence Director Mike McConnell, who has said he would stay on for a reasonable time until a successor is named. CIA Director Michael V. Hayden also is open to considering an extension of his time in office, according to a senior intelligence official.

However, Mr. Obama voted against Mr. Hayden’s nomination as CIA director to signal his frustration with the administration’s warrantless-surveillance program, which Mr. Hayden helped launch as National Security Agency director.

Add comment November 11th, 2008

Closing Guantanamo, plus…

Meteor Blades at Daily Kos says:

Closing Guantanamo Would Be a Good Start, But …

By Meteor Blades

It’s dead certain that Barack Obama will not close Guantánamo Bay on “Day One” as the American Civil Liberties Union and other groups are pressing him to do. Unless the effort to shut down the detention center there began right now with the Cheney-Bush administration’s assistance, it would be logistically impossible. Who would be released, and where to? Who would be tried, and in what venue, under what rules? It does appears from news reports, however, that a freshly inaugurated President Obama may well give the order to close the center on his first day in office. That would be one more reason to cheer on January 20.

But Gitmo is only the most high-profile of the prisons set up to hold suspected terrorists after the 2001 attacks. And while it is essential that the restoration of the rule of law include emptying the cells on that portion of permanently leased Cuban soil, there is, as I argued Sunday in Dear President-Elect Obama, far more to do than merely close Gitmo. Other prisons, including the one in Bagram, Afghanistan, which is considered by many observers to be worse than Guantánamo, should be on the table, too. Plus the secret prisons in Thailand, Morocco, and possibly Diego Garcia. Are they empty, as claimed? And what about rendition, that euphemism for political kidnapping, behavior that would have Americans demanding a declaration of war if any government sent its agents to do it in the United States? What will be done with that?

For the moment, however, Guantánamo appears to be all that’s on the table. The Associated Press reports that the President-Elect’s team is moving quickly to set up a means of dealing with the estimated 250 detainees at the detention center:

Under the plan being drawn up by Obama’s advisers, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require creation of a new legal system to handle the classified information inherent in some of the most sensitive cases. …

Advisers participating directly in the planning spoke on condition of anonymity because the plans are not final.

“The plan could require creation of a new legal system…” Require? It should come as no surprise that this might be the approach of the Obama administration. As Senator, Obama voted against the obscene Military Commissions Act two years ago, and noted in a putdown of the proposed law:

I’ve heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that. The problem is that the structure of the military proceedings has been poorly thought through. Indeed, the regulations that are supposed to be governing administrative hearings for these detainees, which should have been issued months ago, still haven’t been issued. Instead, we have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court.

Sure enough, the Court ruled last summer in Boumediene v. Bush that the MCA unconstitutionally suspended habeas corpus for the detainees. That marked the fourth case in which the Supreme Court made mincemeat of the Cheney-Bush administration’s efforts to make the detainees unpersons in a supposedly jurisdictionless bit of real estate fully operated but not owned by the United States.

Some critics, include me among them, see no reason to establish a new legal system to deal with the detainees.

“I think that creating a new alternative court system in response to the abject failure of Guantánamo would be a profound mistake,” Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, said Monday. “We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems.”

Glenn Greenwald interviewed ACLU Executive Director Anthony Romero today. Much of the interview was about Guantánamo and trials of the detainees. It’s worth clicking through to read the whole interview. Here’s an excerpt:

Now, let me ask you specifically about closing Guantanamo, because that I do think is probably most conducive to being done through unilateral presidential action, since it was done in the first place…

AR: Shut it down, and shut down the military commissions, because it won’t be good enough if you shut down Guantanamo, and then transfer the detainees and charge them under these trials, and use the same screwed-up rules of the military commission at Fort Bragg or Fort Myers or anywhere else. You’ve got to shut down the existing military commissions as well.

GG: Let me ask you about a couple criticisms that are going to be raised quite loudly in the event that he doesn’t come to do that. One of which I think is easily dispensed with that I’m interested in your response, which is, that we simply transfer several hundred highly complex cases to the federal judiciary, that it’s going to overwhelm administratively the courts which are already overburdened and crowd out the ability of other defendants and certainly civil litigants to be heard in the federal court. What’s your response to that?

AR: Well, I think we have very smart administrators in the federal system who can find a way to deal with them and divide them up among the different circuits, making sure that those who have comparable facts and arguments can be dispensed with as a group. And look, the legal system shouldn’t be quick or easy. We’re talking about people’s most fundamental liberties, and the fact is court and judges and trials take time. And that’s because the stakes are so high. I don’t want a quick dirty system that dispenses with people’s rights in a too expedient and a too quick a manner.

The fact is, the government is going to have to bear the burden of proof. Can you try these individuals in a criminal court, or a military commission under the Uniform Code of Military Justice, and come forward with the proof that will stand up in courts of law that are governed by the Constitution, and if it can’t, you’ve got to release them. That’s our system. The burden of proof is on the government if you’re going to take away someone’s most fundamental right of freedom and liberty, to show the proof and to demonstrate it to a neutral and an objective judge, and possibly a jury, if it’s a criminal case, a jury of one’s peers, beyond a reasonable doubt. That is the law.

What the Military Commissions Act did was to rewrite the rules of that law. And so, I think frankly the burden is on the government, and it’s had eight years to collect the information on these guys, and if they don’t have it now, they probably ain’t going to have it in the next two or three years. So you’ve got to bite the bullet and if you don’t have the evidence to prosecute them in good American courts of law governed by the Constitution, then the solution is to let them go.

Whatever the differences we progressives may have over resolving this matter, what a joy finally to be discussing the proper way to correct this grotesque violation of human and civil rights carried out in our names.

Add comment November 11th, 2008

ACLU launches Close Guantanamo campaign

The American Civil Liberties Union (ACLU) is launching a new campaign to close Guantanamo immediately. As part of this campaign they, along with Brave New Foundation are launching a new series of videos:

Go to www.closegitmo.com/ and sign this letter to President-Elect Obama:

Dear President-elect Obama,

Nothing would make me prouder than to see you act on your first day in office to restore America’s moral leadership in the world.

With one stroke of your pen, you can close Guantánamo Bay prison, shut down military commissions, and ban torture.

The Bush administration created a prison camp at Guantánamo - a place where they claimed the law didn’t apply. They detained hundreds of men without charge or trial, authorized torture, and prosecuted some prisoners in military commissions that violate our Constitution and international law.

We can’t let the system of injustice George W. Bush put in place stand - not for a single day.

I want you to know that I will support your leadership on this vitally important issue in every possible way. Please act on Day One to make clear that the government you lead will be faithful to the Constitution.

The restoration of American freedom is in your hands. Give us back the America we believe in.

Signed,

Here is a blog posting by ACLU Executive Director Anthony D. Romero describing the campaign:

Obama: Close Gitmo On Day One. You Can Do It. We’ve Got Your Back

By Anthony D. Romero

It’s already a time-worn cliché when we say that the election of Barack Obama is historic. I still like saying it. Let me share some of my personal reflections on why this election seems historic and hopeful for a sometimes jaded Executive Director.

Like many of you on Tuesday night, I was celebrating the end of the Bush era and the beginning of a historic one. My partner and I went to four festive and fun election parties that night. And then while lying in bed that night, excitedly talking about the world, we reflected on what that night’s election meant for us.

My partner remarked that he was born in 1954, and that the year he was born, African-American little boys like him were still legally put in “separate but equal” schools. Then Brown vs. Board of Education changed all that. And today, an African-American ascends to the highest office of the greatest nation. I remarked that when I was a little boy in the Bronx public housing projects, I never thought I could be president of ANYTHING when I grew up. I only believed I could go to college when I was a high school sophomore after receiving a letter telling me I was offered early admission at a community college. That was the first day I realized I would not have to be a waiter like my father who came from Puerto Rico and worked at the Warwick Hotel for 39 years. I told my partner that my Mom still proudly tells me that I was always smart, ambitious, and focused on school. But I never aspired for anything more than a job like my dad’s because I never thought it was possible. My dad was the only great role model I knew and I wanted to be just like him.

On Tuesday, all the African-American, Latino, poor of all races, and disenfranchised of all countries got the best of role models. Everyone knows who the U.S. president is, and now literally billions of little boys and girls who may have otherwise set their sights too low will invariably set them higher. If nothing more happens (and our collective job is to make sure a lot more happens), change will indeed happen by having a President Barack Obama inspire new generations of little boys and girls to write, “I want to be President when I grow up.” No one will dare ridicule them because of the color of their skin, their ethnicity, their sexual orientation, or convince them that the odds are insurmountable. Tuesday inspired many, but the best of those we inspired we won’t know for generations to come.

For our generation, however, we have to help realize the greatness that President Obama represents. It’s not all on him. He needs us. He has two raging wars, a failing economy where good folks are losing their homes and can’t drive their cars because they don’t have the cash to go the pump, and where they avoid going to the doctor because they can’t afford the bills that will come in the mail. Those are not ACLU priorities, but they are American priorities that President Obama confronts. Solutions to these problems won’t be easy, as he will have to contend with well-moneyed lobbyists from pharmaceuticals, oil companies and military contractors opposing him at every turn. Solutions to those issues will require partisan horse trading with Republicans and Democrats alike — and I worry that he will have to water down what he wants and ultimately give up the Progressive Caucus to get the Blue Dogs and Conservative/Moderate Wing of Republican party, as well as the “Independent” likes of Joe Lieberman (smile).

But our issues and our top agenda are easy by comparison. He doesn’t have to contend with lobbyists in client-bought Ferragamos. Our issues won’t require partisan horse-trading, congressional action, faux hearings and bipartisan committees that deliberate but never deliver.

Our top issue — closing down Gitmo and shutting down the military commissions — can be done as soon as he lifts his left hand, picks up the new presidential pen and signs an executive order closing Gitmo and ending the military commissions once and for all. Call me naive, but I honestly believe he wants to do it. He promised us that on the campaign trail, and I believe it was more than an empty promise. I believe he knows what he needs to do to restore the America we believe in, to get us on back on track, to give us back our America, an America we never stopped believing in but have sorely missed for the past eight years.

With a stroke of his pen on Day One, a good, courageous president can do that — as long as he listens to himself and to our pleas. As long as he doesn’t listen to the centrist and DLC types who tell him, “It’s too complicated.” “It’s tougher than it looks.” “Take your time.” “We need message discipline — you don’t want to do what Clinton did with gays in the military. The nation wasn’t ready.”

But what these so-called experts might forget is that America IS ready. The world is ready. And we need a courageous, optimistic president ready to say back to them, “I don’t want America to live with the stain of President Bush’s Guantánamo prison camp and his flawed commissions for one day longer. I’m closing them today. You tell me how we are going to accomplish that and begin cleaning up the mess we inherited.”

They’re not likely to give him a solution — just their view of the realpolitik. They may play for time, and “get back to him” as he turns his attention elsewhere. But the solution to the stain on America’s pride is in fact really easy: criminally charge all the Guantánamo detainees for whom the government has good evidence. Those we can’t charge, you have to release. For those being tried in kangaroo military commissions, transfer them to federal criminal courts or to courts governed by the U.S. Code of Military Justice. Those are the best systems of justice in the world where the Constitution still stands for something. Let’s use them.

President Obama needs us. Even for the most extraordinary of men like him, his head must be spinning from the “expert” advice he’s getting on a range of issues. Other pressing issues will take time, compromise and horse-trading. Our top issue — closing Gitmo and shutting down the military commissions — just requires us to remind him that that’s what we want; that we have his back when the critics come after him for doing so. We can tell him that we understand that the best of presidents who want to do the right thing are better able to do so when the public, fans and supporters respectfully demand action. Like Dr. King forcing the hand of JFK. Both their legacies benefited from that pressure. And the nation remembers them fondly, even if there were tensions between them. We understand that. I have to believe President Obama understands that.

So let’s get to work to help Mr. Obama be the best president ever. A courageous commander-in-chief, who tells West Wing advisors sipping lattes in Italian calfskin loafers what they have to do, rather than ask the George Bush question, “What should we do?”

In today’s New York Times, we’re running a full-page ad urging President-Elect Obama to close Guantánamo Bay and shut down the military commissions on his first day in the White House. Take a look at the ad.

Today, we’re also launching the first in a powerful series of short videos produced by filmmaker Robert Greenwald, the award-winning director and producer of documentaries including “Outfoxed” and “Unconstitutional: The War on Our Civil Liberties.” Check out the first video now. You can find Robert’s video on closegitmo.com.

We’re hosting an open Town Hall Meeting on Thursday, November 13, when concerned citizens from all across the nation will gather via teleconference to brainstorm how we help Barack Obama take the steps we all want towards freedom on Day One. We can help him do the right thing, we can give him cover and we can respond to his advisors that it not as hard to close Gitmo and shut down Bush’s military commissions as we’re being told. We can’t wait. The world can’t wait. Our America can’t wait. We want it back and need him to get us back on track.

You are invited to this strategy session to help the president do the right thing that’s in his gut. Go to www.aclu.org/townhall for more information and to sign up.

For eight years, patriotic Americans have led the battle against the most un-American policies in recent history. The Bush administration created a prison camp at Guantánamo — a place where they claimed the law didn’t apply. They have detained hundreds of men without charge or trial, prosecuted others in unconstitutional military commissions and authorized torture.

Now, you can help us and our new president seize a dramatic opportunity for progress. You can help this historic president make history on Day One — not a day too soon. Before the weeds and vines of politics-as-usual creep over our hope and smother its light, let’s come together and demand a new beginning and a new day — on the first day. We can and will close Gitmo, and we can shut down the un-American military commissions. It takes a president, but he needs his people. Not his advisors.

Help us reach him. Help President-elect Obama. Help America.

Get involved: Watch our first “Close Gitmo” video, check out our New York Times ad and sign up for our Town Hall Meeting.

If not for us, do it for those legions of little boys and girls who now have a role model they believe in. Let’s not lose their hope in him, in us, and let’s not let their incipient hope in themselves dissipate. Hope is too hard won. And too easily lost.

Add comment November 10th, 2008

Whither Guantanamo trials?

The Obama administration is moving quickly to close Guantanamo, AP reports:

Obama planning US trials for Guantanamo detainees

The Associated Press
Monday, November 10, 2008

WASHINGTON: President-elect Barack Obama’s advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

During his campaign, Obama described Guantanamo as a “sad chapter in American history” and has said generally that the U.S. legal system is equipped to handle the detainees. But he has offered few details on what he planned to do once the facility is closed.

Under plans being put together in Obama’s camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

A third group of detainees –the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans are not final.

The move would be a sharp deviation from the Bush administration, which established military tribunals to prosecute detainees at the Navy base in Cuba and strongly opposes bringing prisoners to the United States. Obama’s Republican challenger, John McCain, had also pledged to close Guantanamo. But McCain opposed criminal trials, saying the Bush administration’s tribunals should continue on U.S. soil.

The plan being developed by Obama’s team has been championed by legal scholars from both political parties. But it is almost certain to face opposition from Republicans who oppose bringing terrorism suspects to the U.S. and from Democrats who oppose creating a new court system with fewer rights for detainees.

Laurence Tribe, a Harvard law professor and Obama legal adviser, said discussions about plans for Guantanamo had been “theoretical” before the election but would quickly become very focused because closing the prison is a top priority. Bringing the detainees to the United States will be controversial, he said, but could be accomplished.

“I think the answer is going to be, they can be as securely guarded on U.S. soil as anywhere else,” Tribe said. “We can’t put people in a dungeon forever without processing whether they deserve to be there.”

The tougher challenge will be allaying fears by Democrats who believe the Bush administration’s military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally enjoyed by everyone on U.S. soil.

“There would be concern about establishing a completely new system,” said Rep. Adam Schiff of California, a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. “And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system — trying to establish that would be very difficult.”

Obama has said the civilian and military court-martial systems provide “a framework for dealing with the terrorists,” and Tribe said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started.

“It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts,” Tribe said. “It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard.”

Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few other options.

Prosecuting all detainees in federal courts raises a host of problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics.

In theory, Obama could try to transplant the Bush administration’s military commission system from Guantanamo Bay to a U.S. prison. But Tribe said, and other advisers agreed, that was “a nonstarter.” With lax evidence rules and intense secrecy, the military commissions have been criticized by human rights groups, defense attorneys and even some military prosecutors who quit the process in protest.

“I don’t think we need to completely reinvent the wheel, but we need a better tribunal process that is more transparent,” Schiff said.

That means something different would need to be done if detainees couldn’t be released or prosecuted in traditional courts. Exactly what that something would look like remains unclear.

According to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate. Some detainees likely would be returned to the countries where they were first captured for further detention or rehabilitation. The rest could probably be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the ongoing talks, which have been private.

Whatever form it takes, Tribe said he expects Obama to move quickly.

“In reality and symbolically, the idea that we have people in legal black holes is an extremely serious black mark,” Tribe said. “It has to be dealt with.”

Add comment November 10th, 2008

Mertus gives human rights advice to President-Elect Obama

Julie Mertus, a professor at American University, and the author of the award-winning book Bait and Switch: Human Rights and U.S. Foreign Policy (2nd ed. 2008), gives advice to President-Elect Obama on human rights:

Dear President Obama:

The Bush administration had eight years to run our country’s reputation on human rights into the ground. It succeeded not only in tarnishing America’s image, but also in derailing the entire international human rights movement. As a professor of human rights who has studied the opportunities and challenges for the White House in transition periods, I know that the window of opportunity for distinguishing yourself from your predecessor is open now, but you must act quickly and decisively if you are to get human rights back on track.

Here are four steps that you can take:

Step one: Create a relationship with U.S.-based human rights organizations.

The Bush administration treated human rights advocates as enemies and shrugged off their reminders of international standards as inconvenient roadblocks. The Obama administration should consider these same groups to be allies and even partners in promoting human dignity and freedom at home and worldwide. Reaching out to human rights activists can be accomplished by calling to the White House a broad range of human rights advocates for regularly scheduled dialogues on human rights. Listen to the advocates. They know their constituencies, and many have fresh knowledge and experience from human rights frontlines and fault-lines. The kind of information they can provide is so central to the creation of your foreign policy strategies that you may wish to launch the dialogue before you take office.

Step two: Repair your relationship with human rights bodies at the United Nations.

Instead of seeking solutions to problems within UN structures designed to unify countries in a common quest for peace, President Bush took a “go-it-alone” approach. This “you’re with us or against us” mantra was designed to separate and divide. The Obama administration can publically reaffirm its commitment to the UN human rights framework and reassert its interest in taking part in the Human Rights Council, the new centerpiece of the UN human rights system. The Bush administration pulled out of the running for a seat on the body because it feared being subjected to review. (The Council reviews its own members first and, thus, would have subjected the United States to review just as it was being criticized for its practices on torture). Although the Council is a deeply flawed institution, the United States has the responsibility to work with those who are trying to get it right. It would be exceedingly helpful if the new appointments of Americans to UN bodies shared a concern with making human rights mechanisms work. That would be a tremendous difference from the Bush administration appointees, who ranged between being skeptical to being openly hostile toward human rights.

Step three: Do something that unequivocally demonstrates that the United States will no longer act as if it is above international law.

A good start would be the creation of an independent body to investigate the role of military and civilian authorities, acting with direct or implicit approval of the U.S. government, in the torture and abuse of detainees. The investigation can start with Guantánamo, but its mandate should be broad. The Bush administration played one legal game after another to advance a distorted view of the proper usage of military courts and to assert a legally incorrect definition of torture. You can count on support from military lawyers on this one. During the first Bush administration, (especially during the Gulf War), U.S. military lawyers played a key role in overseeing the legality of the actions of not only the U.S. military, but also its allies. The second Bush administration, however, marginalized and ignored those same military lawyers. (George W. Bush’s administration didn’t like the legal answers it was getting from military experts on torture, so it turned elsewhere for lawyers willing to follow the administration’s script). Your administration can reaffirm White House respect for military lawyers by hearing and valuing their analysis of the missteps in Guantánamo, Afghanistan, and Iraq.

Step four: In your first week in office, get out your pen and begin signing some long overdue international human rights treaties.

President Bush’s scorn of international treaties went so far as to lead him to take the unprecedented move of “unsigning” the treaty establishing an International Criminal Court and the Vienna Convention on Treaties. You might begin by re-signing these, as well as signing on to the Convention on the Rights of the Child, a convention signed by every country in the world except for the United States and Somalia, and the Convention on the Rights of People with Disabilities, a convention modeled largely on American disability law. These are no-brainers. As to the rest of the human rights treaties that are not signed and/or not ratified, or that are signed and largely ignored, you should appoint an independent board of experts to study and report on the likely outcome of greater American engagement in the treaty processes.

Instead of being viewed as a magnanimous human rights leader, the United States is today considered to be an arrogant human rights cheater. Rebuilding the reputation of the United States and reestablishing its role as a global leader on human rights will take time. But these four steps will give your administration a good start.
Sincerely yours,

Julie Mertus

Add comment November 9th, 2008

Will Obama restore respect for law?

McClatchy Newspapers asks:

Can Barack Obama undo Bush’s tangled legal legacy?

By Marisa Taylor and Michael Doyle

WASHINGTON — When Barack Obama becomes president in January, he’ll confront the controversial legal legacy of the Bush administration.

From expansive executive privilege to hard-line tactics in the war on terrorism, Obama must decide what he’ll undo and what he’ll embrace.

The stakes couldn’t be higher.

On one hand, civil libertarians and other critics of the Bush administration may feel betrayed if Obama doesn’t move aggressively to reverse legal policies that they believe have violated the Constitution and international law.

On the other hand, Obama risks alienating some conservative Americans and some — but by no means all — military and intelligence officials if he seeks to hold officials accountable for those expansive policies.

These are some of the legal issues confronting him:

* How does he close the Guantanamo Bay prison in Cuba? He’s pledged to shutter it, but how quickly can he do so when it holds some detainees whom no administration would want to release?

* Obama has declared coercive interrogation methods such as waterboarding unconstitutional and illegal, but will his Justice Department investigate or prosecute Bush administration officials who ordered or condoned such techniques?

* Will the new administration press to learn the full extent of the Bush administration’s electronic eavesdropping and data-mining activities, and will it curtail or halt some of them?

* The Bush administration exerted tight control over the Justice Department by hiring more Republican-leaning political appointees and ousting those who were viewed as disloyal. Will Obama give the department more ideological independence?

Undoing some policies will take time.

With 316 conservative appointments to the federal courts over the last eight years, Obama could attempt to tilt the courts back to the center or even to the left with his nominees. He could alter the Supreme Court’s bent by replacing two or three justices who’ll probably retire soon.

Civil libertarians, who feel emboldened by a Democrat in the White House, tick off a long list of what they think Obama should do as soon as he takes office. Not only should Guantanamo be closed, they say, Obama should revoke the immunity for telecommunications companies that cooperated with secret eavesdropping, ban the use of secret prisons by the CIA and investigate and perhaps prosecute administration officials for authorizing controversial interrogation methods.

Anthony D. Romero, the executive director of the American Civil Liberties Union, which has led many of the challenges to the Bush administration’s terrorism policies, said Obama could take action on most of these fronts “on day one” by issuing executive orders, such as closing Guantanamo.

“Unless he acts quickly, he runs the risk of showing the American people that their hope and optimism may have been misplaced, and reinforcing people’s deep-seated cynicism that it’s politics as usual in D.C.,” he said.

Although Obama is likely to ban waterboarding and other aggressive techniques soon after taking office, prosecuting administration officials not only would be legally challenging because legislation has granted them immunity but also would be seen by Republicans as highly divisive.

Negotiating that minefield may be among the most difficult legal dilemmas Obama faces early in his administration because of pressure from the left and the right.

“There will be hell to pay if people are prosecuted,” said Sanford Levinson, a University of Texas law professor. “But there’ll be hell to pay if they just walk away scot-free.”

He predicted that Obama might sidestep the controversy with the Bush administration’s help. If President Bush issues pre-emptive pardons to prevent prosecutions, the Obama administration should form a bipartisan panel, similar to the Sept. 11 commission, to oversee an inquiry, he said. Once pardoned, officials implicated in the controversy would be required to discuss details of the policies because they’d be unable to assert their Fifth Amendment right to avoid self-incrimination.

The best person to lead such a commission? Levinson thinks it’s John McCain, who condemned the interrogation techniques when he was running against Obama.

“There would be widespread support if the Obama administration did reach out to someone like McCain,” Levinson said. “More people would regard it as not so much of a Democratic vendetta but as a necessary cleansing of an episode in recent American history that has had phenomenal costs to us around the world.”

Democratic Sen. Dianne Feinstein of California, a senior member of the Senate Judiciary and Intelligence committees, predicted that Obama would move to close Guantanamo relatively quickly. She’ll reintroduce legislation to do so early next year.

“The handwriting is on the wall,” Feinstein said. “It’s just a matter of time.”

Although Guantanamo isn’t expected to be as thorny as the issues of interrogation techniques, detention without charges and eavesdropping, it may take longer to close than Obama wants because of the question of what to do with high-value terrorists. The Obama administration could end up moving them to prisons scattered across the United States as it sorts out who should remain jailed and where others should be sent.

The Bush Justice Department chose to fight the court-ordered releases of many of the detainees, even those whom the military had cleared. Obama’s attorney general is likely to soften that stance and begin releasing them with court oversight, or perhaps order new legal reviews of all detainees.

Three dozen district-court and 15 appellate court vacancies await. Appellate court decisions set precedents for multiple states. Whoever fills the vacant seat on the San Francisco-based 9th U.S. Circuit Court of Appeals, for instance, will shape the law covering nine Western states.

For this reason, appellate court vacancies can become battlegrounds. On the 4th Circuit Court of Appeals, which spans five states, including the Carolinas, a vacancy lingers after eight years.

Considerable speculation in the legal community has centered on potential female appointees to the Supreme Court, where Justice Ruth Bader Ginsburg is the only woman. One potential candidate is Judge Sonia Sotomayor, the first Hispanic woman to serve on the 2nd Circuit Court of Appeals. Another is Harvard Law School’s Dean Elena Kagan, who like Obama was on the University of Chicago Law School faculty.

Noncourt appointments, too, can shape the law in important ways.

Whomever Obama appoints as attorney general and in other top positions in the Justice Department could move in new directions on hot-button issues such as gun control and immigration. And after pledging to tackle the financial crisis and concerns about global warming, Obama might dedicate more resources to prosecuting white-collar and environmental crimes.

Paul Charlton, one of the nine U.S. attorneys whom the Bush administration ousted, predicted that an Obama administration would take a different approach to the death penalty. Charlton clashed with Bush appointees who pushed prosecutors to seek the death penalty in a wide array of cases, including drug trafficking. “I expect there will be a more judicious use of the death penalty,” he said.

However, Bush administration critics who hope an Obama White House will be the antidote to what they see as excessive executive power may be disappointed.

Gene Healy, a Cato Institute vice president and the author of the book “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power,” said expanding presidential power was a bipartisan reflex.

“People tend to think more positively about having robust executive authority when they’re the ones who are actually wielding the authority,” he said.

Obama, however, is unlikely to be aggressive as Bush. “He’ll probably seek congressional approval, and that may be more effective at growing executive power than the unilateral, go-it-alone approach,” Healy said.

Add comment November 9th, 2008

Marty testifies in Milan CIA rendition trial

The Italian trial in absentia of CIA agents and Italian officials for the “extraordinary rendition” into torture is shedding light into Italian collaboration with the dark side. Naturally, the Italian government is trying to shut this down. Swiss Attorney Dick Marty, who wrote a major report on the CIA black sites for the Council of Europe, recently testified against the effort to use “state secrets” as an excuse to protect those who aided the torturers:

Italy: Swiss lawyer testifies at ‘CIA kidnapping’ trial

Milan, 6 Nov. (AKI) - Swiss lawyer Dick Marty is appearing as a witness at the controversial trial of five Italian intelligence agents and 26 Americans, most of them CIA agents, in the northern city of Milan. The defendants are charged with abducting an Egyptian-born Muslim cleric and terrorism suspect there in 2003. Marty last year wrote a report by Europe’s top human rights body The Council of Europe on the CIA’s alleged detentions and illegal flight transfers of terrorism suspects, known as ‘extraordinary renditions’.

The court on Wednesday questioned Marty (photo) closely on his report. In his testimony, Marty argued that the alleged abduction of Osama Moustafa Hassan Nasr - who is also known as Abu Omar - was part of a global CIA strategy involving several European states.

Marty described what are termed ‘extraordinary renditions’ as “beyond any legal framework and in grave violation of the European Convention on Human Rights.”

“As in the US and Germany, the doctrine of ’state secrecy’ has been invoked by the Italian government to try and block the judicial procedures aiming to establish the truth about serious human rights violations committed under its responsibility. This is unacceptable and unworthy of a state governed by law. Let justice take its course.” Marty stated.

Two Italian military intelligence agents last month cited state secrecy when they refused to answer questions from lawyers in the ‘Abu Omar’ trial on orders they received from former head of Italian military intelligence, Nicolo Pollari.

“State secrecy is not being invoked to protect secrets - because the facts in question are largely known - but rather to protect the civil servants and politicians responsible for these abuses,” Marty said.

“The Abu Omar affair is one of the rare cases where the alleged perpetrators of kidnapping carried out as part of the CIA’s ‘extraordinary rendition’ programme are facing justice,” he said.

Marty’s report accused 14 countries including Italy of collusion in a ‘global spider’s web’ of CIA abductions of terror suspects carried out on their soil. EU states Poland and Romania also hosted secret CIA prisons where the abducted terror suspects were detained, the report claimed.

A report by members of the European Parliament last January also accused European Union states of violating human rights treaties by covering up clandestine CIA flights across Europe.

Add comment November 7th, 2008