Can’t Gitmo Dirty – The Penultimate Straw

Marcy is in Minneapolis at the Wide Stance Film Festival National Conference for Media Reform (a really cool program I might add, the link is worth a look) and Ted Stevens clogged my tubes last night, but things look to be A-OK this morning.

Guantanamo The Showcase is starting to seep into the conscience. Marcy has pointed out the rather curious intersection of the right wing family value of hating on same sex marriage, and those who would wish to practice it, with military commission procedure. By far and away, the best national reporting on the Guantanamo Show is, and has long been, done by Carol Rosenberg at the Miami Herald. Marcy thinks it is Pulitzer Prize good; by the time the year is out, I’ll bet she may be right. Our friend drational has done a couple of posts reminding us that the Gitmo Showcase is much more than a macabre puppet play for the Cheney/Bush torture fiends, it is also a big campaign commercial for the "law and order" set at the GOP.

But I want to bring attention to something that really sank in for me yesterday morning and that a few people are starting to pick up on, but not many, and not nearly enough. Rosenberg laid out the background on the day long arraignment proceedings for the detainees at Gitmo at the link cited above:

But the day was remarkable — a 9 a.m. to 6:30 p.m. court session, including two prayer breaks — in which each man rejected the two to four military and civilian attorneys sitting beside him.

The director of the American Civil Liberties Union, Anthony Romero, watched from the spectators gallery in a fury. He had been building a death penalty defense fund and pool of criminal defense lawyers to help the military lawyers.

”It was one of the saddest days in American jurisprudence,” he said. ‘The word `torture’ was used so abundantly and the legal process continued.”

He blamed Pentagon haste to get the men to trial before the end of the Bush administration. Defense lawyers were not given sufficient time to forge attorney-client relationships ”with men who were tortured for five years,” before Thursday’s arraignment, he said.

Some of the men rejected the legitimacy of commissions, in which U.S. military officers serve as judge and jurors. Saudi Mustafa Hawsawi, who allegedly funneled funds for the terror plot, went last and appeared to be echoing the others who came before him.

At one point, after earning the right to defend himself, Bin Attash interjected with a question: “If we are executed, will we be buried in Guantánamo or sent back to our home countries?”

Kohlmann didn’t answer.

However, it was a couple of lines in a teevee report by NBC/MSNBC’s Jim Miklaszewski yesterday (Friday) morning that were what pegged the outrage meter for me. I cannot find a clip of the exact report I saw, it was on MSNBC at about 9-9:30 am Pacific time. If anybody knows it and/or has a link, please post it in comments and I will update accordingly. Here is how I described it at the time in an email to Marcy and some other friends you all know:

Usual junk except for what I am sure he thought were a couple of throwaway lines that I found real interesting. The first was the report we already heard about KSM in the courtroom yesterday at the arraignment being the leader and speaking to the other detainees there as a group, clearly exhibiting his authority. But then the reporter relates how a couple of the other detainees seemed hesitant to give up their military lawyers and be martyrs, but how KSM was explicit in commanding the others, and how the government is not necessarily unhappy with this because the more the military lawyers are out of the picture, the easier the detainees all will be to convict (and administer the death penalty to by extension).

Doesn’t seem that earth shattering at first; however, think through the dynamics to date and the blaring significance sets in. The US has assiduously kept the detainees separated and isolated all this time so that they could not communicate and have structural control from the top down and, then, out of the blue, viola! Right in the middle of the courtroom, Khalid Sheikh Mohammed is blithely allowed to huddle them up like Favre does the Packers. When they break huddle, all of them, even the hesitant ones, suddenly want to dismiss their JAG/military lawyers that have been doing such commendable work under impossible conditions. Exactly at the point it is useful to help the US rid themselves of those meddlesome military lawyers that have been beating up their dog and pony shows.

First the Cheney Administration sacked the military judge that had the gall to allow even a shred of due process to the detainees, and now they have effectively sacked the military lawyers that had the temerity to seek it. This was a knowing and intentional play to deny counsel. The US Administration knew what Khalid Sheikh Mohammed would do, and they knew that, given the opportunity, he would command the other detainees to do the same. So the US made sure it happened, so as to suit their demented self serving convenience. In writing this post, I have found one other person (h/t to Siun) that has also realized what occurred, and it is none other than Anthony Romero, the Director of the ACLU; everybody should know and be ashamed of what has been done in our name.

This huge bit of legal depravity is of truly profound significance, I cannot emphasize that enough. It sure will go an awful long way to wedge out and marginalize the only lawyers actually doing their job in this whole mess, and will insure that a competent record of the torture will not be created (even if the detainees do mention it). It will also hasten the death penalty killing of these detainees that are prime evidence of the whole US torture scheme. Pretty much is one big eraser and obscurer of the legal hash the prosecution has made. Brilliant. But morally, ethically and legally craven and deplorable. This is the story from the Guantanamo arraignment last Thursday that should be being discussed and decried. This is the penultimate straw; the last straw will be the snuff films that have been facilitated and hastened by Thursday’s Gitmo arraignment shame.

132 replies
  1. Leen says:

    thanks bmaz and to Rosenberg. Thanks for shining the light
    “It will also hasten the death penalty of these detainees that are prime evidence of the whole US torture scheme”

    So sick. Spreading this story.

  2. Bushie says:

    Makes me wonder again about the prisoners disappeared from black locations and floating prisons who didn’t even get as far as our Dear Leaders show trial.

  3. Synoia says:

    “Gitmo Showcase is much more than a macabre puppet play for the Cheney/Bush torture fiends, it is also a big campaign commercial for the law and order set at the GOP.”

    Not Law & Order set. This is the flog ‘em & heng ‘em set. The Law & Order set would believe in due process & fair trials.

  4. drational says:

    Bmaz thx for the hattip. I started to post another diary at dKos today, but pulled it because the endorsement would have certainly diluted the impact (the last 2 scrolled off in less than 15 minutes); and I just wish this story was more important to people.

    Maybe tomorrow.

        • skdadl says:

          Great post, drational — already recommended. I’d be cheating if I went for the bonus points, though, having read you yesterday.

        • MarieRoget says:

          That’s an excellent post, drational. We must keep this in front of the public, hit the blogs hard w/it so it doesn’t slip off the radar. Happy to read upstairs that McClatchy will be doing its part; news coverage you can count on over there. Just sent another email to MSNBC/Countdown asking for K. Olbermann to turn his spotlight on it, perhaps interview Carol Rosenberg. Neal Katyal has been on Countdown several times before & could also speak articulately to this issue. When I have time next wk, I’ll send out LTEs & fax several Sens. & Reps.

          This has been a working weekend for me, w/much still to do to wrap things up today, so just a drive by. Very interesting & important post, bmaz, & comment thread.

        • Loo Hoo. says:


          I still can’t get over making someone eat a baseball. I know it’s not even next door to the worst that has been done in our name, it’s just that it’s so freaking twisted. I’m guessing the detainee didn’t have the option of saying, “No, thanks. You eat it.”

          • MarieRoget says:

            It’s a terrible image for me too, LooHoo. Too reminiscent of The Killing Fields– those scenes of herding people away to be executed w/apples & potatoes stuck in their mouths to gag them. This isn’t us, this won’t be us. We can’t let what Pogo said be true of us any longer.

            Need to get offline finally. Read you all later.

          • drational says:

            Thanks for the support all. Seems like the only people reading and reccing this topic over at dkos are the folks posting and commenting here. It is a shame. This seems like such a core issue reflecting the foundational principles of our country. I’ll keep plugging, as I am sure you all will too.

          • PetePierce says:

            My Bassets (5 year old and the new puppy) do it voluntarily and can shred them in about 5 minutes, and golf balls, tennis balls as well. It’s one of many many tortures that not only Yoo has pushed, but current sitting US Attorney David Nahmias and his wife pushed in many secret memos while they were at Main Justice.

            Statement of Senator Patrick Leahy then Ranking Democratic Member, Judiciary Committee On The Nomination of David Nahmias as US Attorney Northern District Georgia 9/30/04:

            After months of stonewalling by this Administration, we are still trying to uncover the truth about the abuse of prisoners in U.S. custody overseas. I have long said that somewhere in the upper reaches of the executive branch a process was set in motion that rolled forward until it produced this scandal. To date, senior Administration officials have avoided any accountability for these atrocities – confirming them to presidential appointments would only underscore this Senate’s willingness to ignore its oversight responsibility.

            Last year, the Senate was asked to consider the nomination of Jay Bybee to the Ninth Circuit Court of Appeals. During Mr. Bybee’s nominations proceedings many Members of the Judiciary Committee questioned him about his legal work — as Assistant Attorney General for the Office of Legal Counsel (OLC) at the Justice Department — on issues concerning interrogation techniques, the applicability of the Geneva Conventions to individuals in U.S. custody, and the legal underpinnings of the fight against terror. His answers were non-responsive. For example, when I asked him to discuss his thinking about the status of detainees, Mr. Bybee responded: “As an attorney at the Department of Justice, I am obligated to keep confidential the legal advice that I provided to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice.” One of the nominees on our agenda today, Mr. Nahmias, has provided similar responses to me today on similarly crucial issues.

            We are asked to consider the nomination of David Nahmias to serve as a U.S. Attorney in Georgia. Mr. Nahmias has held senior positions at the Department of Justice and unequivocally supported broad executive power in the war on terror – positions that the Supreme Court has soundly rejected. At the Department of Justice, he has worked on the legal underpinnings of the President’s war against terror and given speeches about enemy combatants and the applicability of the Geneva Conventions, among other issues.

            In speeches, he has unequivocally supported the President’s authority as Commander in Chief to designate and detain suspected terrorists, including American citizens, as enemy combatants without judicial review by an Article III court. In the case of the American citizens detained as enemy combatants, he argued that there was no reason for judicial review of their detentions because they, “received the absolute ultimate executive branch process,” because the “President of the United States, operating as the Commander-in-Chief, personally reviewed their cases, and personally designated them as enemy combatants.” The Supreme Court strongly rejected this position this year and held that the detainees in Guantanamo Bay and U.S. citizens being held as enemy combatants have the right to challenge their detentions in federal courts.

            Mr. Nahmias has also made other troubling comments – such as saying that having hearings for enemy combatants would undermine national security; and that what is “unusual about the military commissions” is “the amount of procedural protection that’s being offered in those commissions compared to the way they work historically and in other parts of the world.”

            I asked Mr. Nahmias questions about his views on the rights of enemy combatants, his role in investigating, approving, or otherwise reviewing rules, procedures, or guidelines involving the interrogation of individuals held in the custody of the U.S. government or an agent of the U.S. government, and his role in the prosecution of domestic terrorism cases. His original answers were largely non-responsive, despite the number of words used, and I sent him further questions to clarify his record and views. Again, he failed to provide complete responses.

            For example, I asked him about his role in the development or review of advice from the Office of Legal Counsel on the interrogation of detainees, a serious and important issue to this Senate and the American people. As we all now know, Mr. Bybee’s torture memo was written during Mr. Nahmias’ tenure at the Department. This memo redefined torture to allow all sorts of brutal treatment (such as mock burial alive, simulated drowning, electrocution, tearing off of fingernails, and other such barbaric treatment) so long as the pain caused is not akin to organ failure, and concluded that, as commander in chief in the war against terror, the President and federal agents are not constrained by anti-terror laws.

            Before confirming Mr. Nahmias to this important appointment, Senators should know what role he played in the development of this policy. We should know what role he continues to play in these matters. This is an area where bipartisan leaders and attorneys have called for increased Senate oversight and action. Unfortunately, however, Mr. Nahmias decided to give us as limited information as possible while on its face appearing to answer the question. He does not thoroughly describe his communications with OLC, the nature of his work, or what he was asked to do. Instead, he writes, “While I have participated in portions of that internal deliberative process [related to the interrogation of detainees], it would not be appropriate for me to comment in detail about my involvement in the process.”

            Both Laehy and Carl Levin of Michigan have tried repeatedly to get Nahmiah’s testimony on the torture memos he and his wife wrote, and Gonzales and Mukasey consistently have stonewalled his testifying.

            This is one more instance where subpoenas should be issued and if they are resisted, contempt procured and then inherent contempt should be invoked forthwith throwing Nahmias and his wife in a cell in the basement of the Senate.

            BTW I found Marcy’s conferences in Minnesota, but does anyone know of an audio link for them? The site allows you to choose a pulldown for each speaker, but then when the page comes up there is no place to actually listen.

  5. rkilowatt says:

    “…law & order set”. Waasn’t there”law & order” under Saddam? Isn’t there “law & order” in every nation? Isn’t “law & order” a meaningless generality?

    Is it not similar to the oft proclaimed “A nation of laws”?

    Or, “We are a democracy” asserted to proclaim superiority? When did the US become a “democracy”? 1776? After slavery was abolished abt 1865? After 1920, when women were allowed to vote in all states?

    Beware meaningless generalities.

  6. darclay says:

    I’m trying to wade through the 200-300 pages I copied SSCI and other reports and keep up with this also. I actually have had one of my client almost in tears just talking about this, torture and how sad she is that the US has taken this path, hope there are others that take notice. thanks for the post

  7. skdadl says:

    I think you’re right, bmaz. It’s this, or it’s something that looks a lot like this. Very fine post.

    drational made a sharp observation a couple of threads ago that I’ve been thinking about since. At least one of the reasons al-Qahtani’s case may have been hived off from the other five is that al-Qahtani still seems to be attached to a lawyer, which would slow this plot down, so he has been removed for separate treatment.

    One of the things that has kept some of us upbeat about the Khadr case is that the kid still seems to be attached to his (exceptionally good) lawyers, in spite of what sounds like pretty serious abuse when he was first detained.

    To me, judicial killing is sadism (yes, I’ve read de Sade) — the delay and the ritual are the problem. That is obviously what thrills some people (and clearly it does thrill some people). But much worse, that this should be done in the service of an election? I wish I had words. I’m looking for them hard, and I appreciate so much everyone else who keeps trying.

    • drational says:

      Yeah this is what I am focused on. I think they purposely let KSM intimidate Hawsawi because his defense lawyers are putting up a fight (despite his request to self-represent.
      If they can get Hawsawi on the Martyr train then they all win (the detainees and the prosecution).

  8. skdadl says:

    Oh, and a PS: This, from Roseberg’s report, just took my knees out from under me:

    At one point, after earning the right to defend himself, Bin Attash interjected with a question: “If we are executed, will we be buried in Guantánamo or sent back to our home countries?”

    Kohlmann didn’t answer.

  9. drational says:

    Unfortunately I posted and deleted immediately so i am blocked till tomorrow.
    will post early…
    the gist is related to EWs post from May 13: http://emptywheel.firedoglake……l-qahtani/

    Basically, I think they dropped al Qahtani because he had a working relationship with his defense lawyer. And that meant he would mount a defense and slow down the show. The Admin wants so bad for these detainees to drop their lawyers that they even let KSM intimidate!!! the only one whose lawyers were trying to put up a defense. Read this link on the intimidation:…..59602.html

    A gross practical failure of criminal law. they are not even trying to put on a pretense of fairness.

    anyway IMHO it is a good post but what’s a kosser to do?

    • bmaz says:

      Well, I think it is not just the lawyers, but the somewhat distinct posture they have placed the defense in with al-Qahtani’s unique facts on where, when and how he was tortured. There is flat a whole boatload of issues the government is on the wrong side of with al-Qahtani. And, hey, why not just dismiss the charges and avoid the mess when they can just keep him locked up in isolation until he dies anyway?

      • drational says:

        I agree regarding torture- but that only gets brought forth if someone puts up a defense. In the Rosenberg details of Thursdays show, the detainees were not allowed to talk about torture details, and KSM at least was compliant. Nobody is going to stand in the way of their conviction but a lawyer, and Al-Q had a slew of lawyers working with him on his behalf.

  10. LS says:

    I heard the same MSM report. It said that the other detainees are really afraid of KSM.

    The whole thing is sick, sick, sick. God help us.

  11. urbanempire says:


    Good post, but I don’t think that things are as dire as you make them out to be in regards to the Gitmo death penalty cases. The Bush Administration is trying everything possible to speed up the trial and guilty verdicts of these 5 guys before the November election in order to tilt the balance in favor of John McCain. That’s a given, especially after all these years of the administration skirting every law and moral decency possible.

    So, why am I (somewhat) hopeful? Well, because in 3 weeks the Supreme Court is going to issue its ruling in Boumediene that will have a huge effect on the rights of the Guantanamo detainees. I suspect that the Court will rule that for all intents and purposes Gitmo is part of the US and thus, the detainees there should have some greater degree of due process rights. This would throw the entire MCA proceedings against KSM and the others into doubt and could very well mean that a new trial would have to be convened.

    • bmaz says:

      Oh I am fully cognizant of the implications of the upcoming decision in Boumediane v. Bush, but even assuming that the result moves things in the path you suggest, the harm from the scam run on Thursday at the arraignment will still permeate and prevail; it is only a question of to what degree. By not keeping these guys separate, and allowing them to be ordered to refuse assistance of counsel and to demand rapid death, will likely mean they will take that tact even in the restructured process you envision. That is what I was trying to get across; this was a fundamental and seminal moment, and a craven one at that. It is not being understood and exposed as it should be.

      • urbanempire says:


        Oh yeah, that’s definitely a possibility. But what if, say, in the wake of Boumediene the DC Circuit (having jurisdiction over Gitmo) rules that new trials shall require various procedures that bring it more in line with US criminal trials than the current show trials are. If this happens, wouldn’t it be illegal for the court to “allow[] them to be ordered to refuse assistance of counsel”? That would prevent what happened at Thursday’s arraignment from happening again.

        • bmaz says:

          No, certainly not illegal. The general standard, even in regular federal courts, is if a defendant is mentally competent, and is knowing and intelligently (strictly in the legal term of art sense, i.e. understands what he is doing) in his desire to waive assistance of counsel and represent himself, then he will be allowed to do so. The court often still provides at least one “advisory counsel” to work with such defendants, but the defendant runs the show and makes the decisions and arguments.

          • urbanempire says:


            Ok, that’s an excellent point but now I’m confused. If criminal defendants are allowed to represent themselves in regular courts, why is it a huge deal that KSM and the others requested it during their arraignments? It seems to me that the actual issue isn’t so much that they requested the right to represent themselves, but the fact that it means that, as you say, that will make it easier to convict and execute them before the election. But if, as I think, the SCOTUS rules in the detainees favor, it delays the entire process until well after the next President takes office. Given that both McCain and Obama have pledged that they will close down Gitmo as soon as either one is elected, that seems to be the most ideal situation.

            • bmaz says:

              All of that is good; but they have to try these clucks somewhere, sometime. And I guess the best way I can answer your other question is that it is one thing to allow a man to make his own decision about waiving counsel and demanding to plead guilty and be put to death; it is quite another to encourage and facilitate that man in ordering four other men, that on their own did not seem overly predisposed, to do the same against their best interests. That is simply beyond the pale.

          • drational says:

            I guess Suicide by Jury is more palatable than Suicide By Tribunal.
            But I am not as optimistic on Boumediene as yall.

            • BoxTurtle says:

              I’m with you. I fear that the Supremes will side with BushCo.

              Boxturtle (*worry*)

      • readerOfTeaLeaves says:

        Without interpretations like this one, bmaz, a person like myself would have no clue.

        What you describe plays straight into the hands of extremists everywhere. It empowers thugs, would-be martyrs, and the despairing.

  12. phred says:

    Good catch bmaz. I heard the same thing on NPR yesterday. Apparently one of the defendants in particular seemed reluctant to reject his lawyer, but did so under pressure from KSM. This particular defendant (whose name I can’t recall) is weak and thin and had to sit on a pillow in court. His lawyer was livid that KSM was allowed to interfere with his client’s defense, but it sounded like his objections fell on deaf ears.

    Seems like there is not much honor to go around in those “court” rooms. KSM was willing to sacrifice other people’s lives before his capture and he is still willing to do so, only this time the American military is happy to lend him a hand. Nice. Good to know we are all on the same team now.

    • bmaz says:

      Just so no one is confused, I shifted the order of posts, because I wanted the substantive Gitmo thread up on top, as opposed to trash talk.

    • readerOfTeaLeaves says:

      JohnL, just an additional point for anyone unaware that Neukom is the 2007-08 ABA President, and also former Chief Counsel for Microsoft Corp.

      A friend mentioned that the Wa State ABA Annual Dinner this year was quite the event – people more energized than they’ve seen in many a year. No info on Neukom and whether he was there, but the firing of John McKay still reverberates, one gathers.

      Bad for Bush.
      Hopefully quite promising over the longer term for the legal system, and more clear focus on the role of government in providing a legal framework for the pursuit of justice.

  13. urbanempire says:


    On that, we can definitely agree.

    drational and BoxTurtle,

    The thing is, we know that there are at least 5 votes of the court to grant the Gunatanamo detainees habeas corpus rights. (See Rasul v. Bush, plus Kennedy’s concurrence stating that “Guantanamo Bay is in every practical respect a United States territory”). And so, the very fact that they will be granted habeas rights means that they are entitled to some some of adequete remedy (either an actual habeas trial or equivalent process, like the CSRTs). The real question in Boumediene is whether or not the CSRT that the Bush administration set up is adequete. Initally, both Justices Kennedy and Stevens thought that they were and thus denied cert to hear Boumediene. Then, after Boumediene counsel Seth Waxman filed a amicus brief by Stephen Abraham detailing the gross inadequacies of the CSRT process, the court suddenly reversed its own decision and granted cert. This means that Kennedy and Stevens changed their minds. (Also, during the December oral argument, after Kennedy asked SG Clement whether the CSRT could order the release of a detainee that it determined was not an “enemy combatant”, Clement responded that he didn’t know, which made Kennedy ask what does that tell you about the adequacy of the remedy?”). So the question then becomes does the court remand the decision back to the DC Circuit with instructions to apply greater due process when evaluating the decision of the CSRT or whether the SCOTUS throws out the CSRTs altogether and asks Congress to create a new procedure to try detainees in accordance with the due process rights available to them.

    • bmaz says:

      Also, during the December oral argument, after Kennedy asked SG Clement whether the CSRT could order the release of a detainee that it determined was not an “enemy combatant”, Clement responded that he didn’t know, which made Kennedy ask what does that tell you about the adequacy of the remedy?

      urbanempire, you have hit the nail on the head here with you comment in general and this blurb from Kennedy in particular. And we pretty much have our answer because, far as I can tell, there are no charges whatsoever against al-Qahtani, yet I sure don’t recall anything about him being released….

  14. wavpeac says:

    You just spit in my “justice” soup du jour.



    Not in my name. I want to move to Canada, unless something is done that validates the depravity, the hypocrisy of this situation. Nothing creeps me out more than this kind of cruelty and power and control. nothing. It’s like looking in the face of the devil.

    • skdadl says:

      Wavpeac, I hate to tell you this, but we have a fair amount of depravity and hypocrisy up here. Our current government is made up of Cheney wannabes. They are a minority at the moment, but they govern as though they were masters of the universe. Well, Cheney wannabes would, wouldn’t they.

      I understand the sentiment, though. To me it is hard work to calm down enough to fight back usefully. I think that is what we must do, although if anyone is ever desperate, I have a spare room.

  15. masaccio says:

    I finished reading the SSCI phase 2a report, and put up two very long comments on the Working Thread. The gist is that the conclusions are watered down to get a couple of Repub votes, Hagel and Snowe. The facts are much stronger than the conclusions. The second comment addresses the concurring views of Rockefeller, Feinstein and Feingold. They don’t go into detail, but they say that the Administration is a bunch of liars.

  16. wavpeac says:

    Honestly, my folks have property up near the gunflint trail on the MN side of lake superior. We have often joked about the situations that might lead us to pick up canoe and row quietly across the border. It just makes me sick. Torture literally brings tears to my eyes. It’s so hard to read it, but it seems that if we don’t face it, accept it, we cannot change it.

    I haven’t picked out my canoe yet.

  17. Loo Hoo. says:

    This is the first I’ve heard of agents forcing detainees to eat a baseball.

    Sixty congresspersons, including Conyers write a letter asking for a Special Prosecutor.

    How do you eat a baseball?

    • skdadl says:

      masaccio, you are an international treasure.

      Loo Hoo and wavpeac, now I am feeling really bad. I just don’t want to believe that people do these things. wavpeac, I’m not sure that anyone has ever canoe’d to Greenland (that’s Denmark; they’re nice, sort of like Canada without the neocon part), but I think it can be done in kayaks. If this keeps up, I may keep you company.

      • Loo Hoo. says:

        I know what you mean. How does one conclude that putting someone’s hand in gasoline and lighting it on fire would be productive on any level? I’m afraid we haven’t learned the worst of it.

        How in the world do we repair this? The sixty congress critters are on the right track. And an impeachment between the election and January 20th? Is this possible? George Bush should not be able to pardon anyone for these kinds of crimes against humanity. Crimes against all of nature.

        ReaderOfTeaLeaves, I’m reading The Sociopath Next Door. Just started, and it’s fascinating. Thanks.

        • readerOfTeaLeaves says:

          ReaderOfTeaLeaves, I’m reading The Sociopath Next Door. Just started, and it’s fascinating. Thanks

          You’re amazing; that was fast!
          Suggest you read something else before falling asleep, though.
          I’m glad to see you think it’s worth your while; wavpeac, ditto.

    • JimWhite says:

      Wow, just wow. This is a wonderful development. 56 Democrats in Congress signed that letter calling for a special counsel to investigate torture. Key sentences:

      This information indicates that the Bush Administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law. We believe that these serious and significant revelations warrant an immediate investigation to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act (18U.S.C.2442), the Anti-Torture Act (18U.S.C.2340-2340A), and other U.S. and international laws.

      This language stands out to me because if you have spent any time looking at the website for the International Criminal Court, you will find that key issues to establish standing include that the crimes result from a systematized, top-down policy, just as stated in this letter. Note they also refer to international law. This is a powerful move by a courageous set of Congressmembers. They are setting the stage to threaten Bush, Cheney, Rice, Ashcroft, Rumsfeld, Gonzales and others with being shipped off to The Hague if they don’t cooperate fully with the investigation. Will they have the balls to follow through?

      Punishment under our laws should be good enough for many purposes in moving our country out of this terrible nightmare. By structuring the situation in this way, they can use the threat of the ICC to make sure they don’t pull their usual BS to try to make this go away.

      Someone in Congress understands jus cogens and obligatio erga omnes.

  18. masaccio says:

    Skdadl, thanks.

    So how do we feel about Paris? I don’t speak much French, so I wouldn’t know what crap the government was doing, and the cheese and wine are great.

  19. WilliamOckham says:

    We all need to be clear on exactly what is going on here. This is nothing less than government sanctioned murder for political purposes.

    • wavpeac says:

      My definition of war that is is the use of destruction and death to meet an objective or goal.

      All war is that, basically. The goal might be self preservation or it might be oil, to free the slaves, or to save the jews in internment camps. But it is basically meeting an objective by using death and destruction.

  20. wavpeac says:

    I don’t think I could kayak or canoe to Paris. But dang, those french sure did give a try at confronting the USA. Why didn’t they take it all the home?? It certainly wasn’t because we started using the term “american fries.” I mean we can theorize about why our congress didn’t stand up. But I am thinkin’ that France, Germany, Italy, Britain, and yes, Canada. Had to have some idea that this was all bogus stuff. They have intelligence people, right? Why didn’t anybody stop us!!

    • readerOfTeaLeaves says:

      FWIW, I happened to be in Europe during a period in the months prior to the war. Even people in the bistros and greengrocer shops knew that the BushCheney admin was cooking books and selling shit.

      Which is simply to underscore how shameless and pathetic the US media were (except for Christian Science Monitor, Sy Hersh, and McClatchy that I can think of offhand).

      As one person said quite frankly, “Of course we know what Saddam has. The Germans probably sold him the chemicals, and the French know a lot more than they tell.” Made sense.

      Coming back to US was like walking through a warp field.

  21. wavpeac says:

    sociopath next door…great book. Every single person in my circle who has read it has thought of our fearless leaders and had to discuss them in reference to the book.

  22. Loo Hoo. says:

    Jim White:

    They are setting the stage to threaten Bush, Cheney, Rice, Ashcroft, Rumsfeld, Gonzales and others with being shipped off to The Hague if they don’t cooperate fully with the investigation. Will they have the balls to follow through?

    I think we’re safely at the point where the congress critters who do NOT go after BushCo for war crimes will be the ones losing their seats. But hell, I’ve been thinking that for a long old time.

    • JimWhite says:

      I think we’re safely at the point where the congress critters who do NOT go after BushCo for war crimes will be the ones losing their seats. But hell, I’ve been thinking that for a long old time.

      I agree, and I hope I am not over-reacting, but I’m doing a Snoopy happy dance over seeing them actually take a bold move. I just hope they don’t lose their nerve like they usually do if a Republican says “boo”.

  23. masaccio says:

    He won’t do it. The OLC has spoken through the loathsome John Yoo, and many people acted in reliance on it, and they won’t prosecute. As we Cubs fans say, maybe next year.

  24. Loo Hoo. says:

    They relied on John Yoo to make somebody eat a freaking baseball? What planet are we on?

  25. bmaz says:

    I love the the thought of the prospect. but, regrettably, think you guys may be getting way ahead of any possible reality. This paper contains a fairly decent discussion of a lot of the general parameters that are involved in such an attempt at general international jurisdiction. Note that, although there is discussion of criminal charges, including torture, the main focus is civil; and the conclusions are not blindingly promising even for civil application, much less criminal application to top governmental officials. That maintains well before even mentioning, much less discussing, the various exceptions, limitations and prohibitions that are littered throughout US laws and treaties.

    • JimWhite says:

      Here is the discussion of standing from the ICC prosecutor that I was discussing:

      Analysis was conducted in the light of the elements of wilful killing (Article 8(2)(a)(i)) and torture or inhumane treatment (Article 8(2)(a)(ii)).17

      After analyzing all the available information, it was concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment. The information available at this time supports a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons.


      Even where there is a reasonable basis to believe that a crime has been committed, this is not sufficient for the initiation of an investigation by the International Criminal Court. The Statute then requires consideration of admissibility before the Court, in light of the gravity of the crimes and complementarity with national systems.18

      While, in a general sense, any crime within the jurisdiction of the Court is “grave”, the Statute requires an additional threshold of gravity even where the subject-matter jurisdiction is satisfied. This assessment is necessary as the Court is faced with multiple situations involving hundreds or thousands of crimes and must select situations in accordance with the Article 53 criteria.

      For war crimes, a specific gravity threshold is set down in Article 8(1), which states that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. This threshold is not an element of the crime, and the words “in particular” suggest that this is not a strict requirement. It does, however, provide Statute guidance that the Court is intended to focus on situations meeting these requirements.

      According to the available information, it did not appear that any of the criteria of Article 8(1) were satisfied.

      This is the passage that had me thinking that the ICC already agreed torture within its jurisdiction had been documented and that establishing it as policy was a key step in moving forward. The revelation of the high level meetings, and Bush’s approval of them, seems to meet that. Further, the wider application of these techniques that is coming to light also seems to meet the other concern mentioned here.

      A final requirement is for prosecutions to be initiated within the home state.

      All these seem to come together for me through the letter from Congress.

      • skdadl says:

        A final requirement is for prosecutions to be initiated within the home state.

        Honest question: I don’t know and sit to be corrected, but I thought it was the other way around, that the ICC only stepped in when the home state failed to prosecute.

        • JimWhite says:

          Thanks for pointing that out. I got it garbled there. What I was trying to say is that the ICC watches to see if there is prosecution starting in the home country, so a trigger for them hinges on whether and how prosecutions go forward. If it doesn’t or the prosecution gets quashed, then they step in. I was trying to say that starting prosecution here then becomes leverage to keep Bush/Mukasey/Cheney from stopping the investigation because then the ICC could be waiting. Also, it is possible the home country could turn over the criminals as part of the prosecution.

  26. bmaz says:

    From the Washington Post:

    A military defense attorney for a detainee held at Guantanamo Bay, Cuba, has asked that all charges against his client be dismissed after prosecutors provided him documents that show the detainee was subjected to an abusive technique that had been banned at the facility, calling the treatment a violation of the law of war and U.S. laws and policies.

    According to Guantanamo prison records, Mohammed Jawad was subjected to the military’s “frequent flier program” in May 2004, which meant he was moved repeatedly from one detention cell to another in quick intervals and usually at night, a program designed to deprive detainees of sleep. Such sleep deprivation was banned at the facility in March 2004, and other prison records indicate that it was used on detainees as late as July 2004.

    Frakt argues that, after his client was sent to Guantanamo, he was tortured and that there is substantial case law supporting the case’s dismissal, a point the government strongly opposes. He said his client’s mental state was seriously altered as a result of the illegal technique and its duration — far longer than the few days of sleep deprivation that at one point were allowed — and that it indicates wider abuse at Guantanamo than has been previously acknowledged.

    “I think it reflects the abandonment of basic American values of human decency that occurred on a widespread basis in detention operations in the first two to three years of the global war on terror,” Frakt said yesterday. “What started as an effort focused on a few detainees believed to possess critical intelligence filtered down to ordinary detainees and became routine.”

    A 46-page study report by lawyers at the Seton Hall University School of Law expected to be released today supports Frakt’s contention that investigators missed many allegations of abuse at Guantanamo and omitted others from official reports. The Defense Department has repeatedly used the report to show that there was no torture at Guantanamo. The Seton Hall analysis, led by lawyers Mark and Josh Denbeaux, found that FBI-reported beatings, religious abuse and other illegal techniques were missing from Schmidt’s investigation and never surfaced elsewhere.

    “Despite the Schmidt Report’s failure to properly address FBI agents’ accounts of misconduct at Guantanamo Bay, the Government has accepted the report’s assertion that no ‘inhumane conduct’ ever occurred at Guantanamo,” the Seton Hall study concludes. (Emphasis added)

    You have to hand it to the Bush Administration, they are nothing if not consistent, there is no modality they will not implement to abuse and degrade humanity. It is disturbingly ironic that literally the only thing they have shown themselves adroit and competent at is continually finding new and inventive ways to make the United States look like shit. We should keep our eyes open for the Denbeaux report. I am familiar with previous work of theirs, and it is very good.

  27. masaccio says:

    Geez, bmaz, not only a law journal article on Saturday night, but one by a Cambridge professor. and he doesn’t cite the Nuremburg war crime trials. I’ll read it tomorrow.

    • bmaz says:

      Parts of it can be skimmed rather quickly. Don’t know how much substantive you will get out of it; was meant mostly as kind of a general background and indication for those not law trained of the difficulty and conflicts inherent in any contemplation of submitting US officials to the Hague, it shows fairly well that the consideration is difficult even on civil cases, much less criminal ones.

  28. prostratedragon says:

    bmaz, I was going to marvel earlier at their unerring “instinct” for the jugular of our system of laws. It’s not just that they break serious laws and violate the Constitution. They really go all out against such underpinnings as habeas corpus, right to counsel, access to courts, citizenship, any potential avenue by which a petitioner might then attempt redress of immediate violations. It’s what makes them truly unspeakable. Unfortunately, it is also what there is too little evidence of anyone in Washington having grasped (though I’m certainly glad to see today’s letter from the Congresspeople).

  29. althespook says:

    hi folks, al the spook here momentarily materializing with a really relevant link to this story. Laura at iamtrex sent email to a mcclatchy reporter on the whole mess and get a really awesome reply back that we all need to be aware of. I’m linking to her comment where the posted the replay from the reporter.


    • readerOfTeaLeaves says:


      Okay, I see a promise of small jet fighters approaching the Death Star.

      Please, Mr Spooky-Whoever-You-Are — DO NOT TEASE! Damn, this better be good.

      • althespook says:

        rotl: i’m not teasing but don’t know the contents anymore than anyone else. this just showed up after i linked to this thread over there and did a quick post on my blog about it. so we’ll have to wait and see. but i’m hopeful.

        • readerOfTeaLeaves says:

          Heh… Okay, I think there’s plenty of us really wanting to be hopeful!
          Was mighty interesting to see what happened with Gates and the Air Force last week, after reading your posts wayback last fall.

          Still spooky.

          • althespook says:

            yeah but so far it has turned out okay. i’m more concerned about a carrier group being sacrificed to a small boat attack to justify an iran attack now. will try to put up a post on that in next day or so. ndfg and i are engaged and she’s moving here to be with me so we’re in frantic move mode along with my dad being in hospital on and off due to problems with his diabetes meds. bottom line, posting is slow but determined.

  30. FrankProbst says:

    I’m not sure they’re trying to get this in before the election. I think that what they’re doing is trying to get these men executed before Cheney leaves office. I don’t think this is political theater for the American people. I think it’s just pure spite from Cheney. He wants them dead. And, as always, he doesn’t care how many laws he needs to trample to get what he wants.

    • bmaz says:

      Probably some of both; but for the record, there is direct evidence (Hartmann?) that the timing is considered to be critical for the GOP election posture, so, whatever else it is, it is that at least partially.

      • FrankProbst says:

        Probably some of both; but for the record, there is direct evidence (Hartmann?) that the timing is considered to be critical for the GOP election posture, so, whatever else it is, it is that at least partially.

        I realize they’re desperate for ANYTHING they can put a positive spin on, but I can’t think of any legal proceeding since 9/11 that’s made the Republicans look good. This one is already so unbelievably tainted that they can’t possibly expect to get much out of it.

        • bmaz says:

          Heh heh, I didn’t say it was a bright, effective or defensible strategy, just that there has been some fairly compelling indication that they are indeed manipulating for that purpose.

      • readerOfTeaLeaves says:

        bmaz and all,

        I’m thinking that massacio is correct in his point that the report has been watered down to the point that the meaning is almost leached out by the polite, courteous ‘Senatorial’ compromising language. From what I’ve read, I agree.

        But if the report is in fact that obtuse, then the way to extract that info is to validate the specific statements, summarize them into a ‘validity table’ (T, F) and then discuss from there. But before spending any more time, it would be necessary to get some feedback.

        Or TWOT (total waste of time)?

        • bmaz says:

          Well that would depend on the time/value assessment of the individual or individuals contemplating the task. I remember when the Iraq Study Group Report (Baker-Hamilton) came out and most everybody thought is useless, stale and irrelevant upon arrival. And as to a lot of the ultimate use of it, that may have been true; but there was simply a ton of very useful and significant factual findings and hard hitting intermediate conclusions that when lined up and spelled out, painted a pretty devastating picture. And, to me at least, I thought that very powerful because the tact that the Republicans, and the Administration, took was to not attack the foundation and content of the report but to instead just trivialize and marginalize the grander recommendations. Thing is, that meant they did not challenge, and therefore effectively admitted all those hard hitting facts and intermediate conclusions.

          The same could likely be done here. While the general conclusions that everybody wants to focus on may be terminally watered down and thinned out past usefulness, why bother with those? Cull the hard critical factual findings and citations, and intermediate conclusions, list them and spell them out for each area that needs to be addressed, and they will likely be powerful enough to exhibit, unequivocally, the obvious conclusion we want. So, I think it is a worthy task, the better question may be whether people capable of getting the work product out to a point and audience that can realize the powerful effect will actually do so. That I don’t know.

          • kspena says:

            The two admininstration talking points I’ve heard are:

            1. “this is a report from the democrats”, as if it were only opinion and not a study and analysis, and
            2. ” we’ve heard all this before….no news… move on…”

            • kspena says:

              There’s also another:
              3. “The democrate only looked at 5 or 6 documents (lazy), so it’s not comprehensive…

          • readerOfTeaLeaves says:

            Thanks for thoughtful response, especially this bit

            Cull the hard critical factual findings and citations, and intermediate conclusions, list them and spell them out for each area that needs to be addressed, and they will likely be powerful enough to exhibit, unequivocally, the obvious conclusion we want.

            As for this:

            So, I think it is a worthy task, the better question may be whether people capable of getting the work product out to a point and audience that can realize the powerful effect will actually do so. That I don’t know.

            I was narrowing the scope to massacio’s info back on the other thread. He’s provided plenty of info to demonstrate his point — it just needs some kind of table summary that makes comparing BushCheney claims against the evidence more quick and simple.

            It’s not feasible to take on the whole report (certainly not, at least, for me). But the samples that massacio has provided are do-able, IMHO.

            People get confused by words (which Rove knows all too well).
            There’s a reason companies use billboards and engineers use table summaries to spot conflicting, and also changing, data. (Why more attys don’t use table summaries baffles me, but I assume it’s because the law is all about language…?

            kspena, couldn’t agree with you more.
            And as far as I’m concerned, it’s absolutely shameful that the GOP was able to delay that report for so long. It also, however, shows how much they fear its real contents.


      • skdadl says:

        Morris Davis is the former lead prosecutor who spoke out most damningly of the political timing of the trials (as he resigned). Thomas Hartmann is the senior DoD legal adviser to the Convening Authority who was ordered to step back from one trial (Hamdan) because Judge Allred questioned his impartiality (so I think we’re assuming that he shouldn’t be involved in any of them?).

        Like Frank @ 70, I don’t see how anyone could expect to profit politically from a tainted mess that is just getting worse daily, but then I’m never sure how out of touch I am with certain mentalities. Some people never seem to feel embarrassed or ashamed about the messes they create. And I guess they’ve got a constituency.

        I keep thinking about bmaz’s last line — about the snuff films. If anything, the minds that want those horrify me as much as the executions will. But they’re there, aren’t they.

        People here are wonderful. Getting the word out day after day is the best antidote to the horror. Well, it’s the only one some of us have, anyway.

  31. readerOfTeaLeaves says:

    bmaz and EW (and massacio), I hope it’s okay to put the info here on this thread that I’ve taken from massacio’s end of thread message referenced @35 above. Massacio asks, “Why is the SSCI document stating that the intel agreed with Cheney’s Aug 2002 speech if the evidence shows otherwise?”

    First, a caveat: I’m not sure that I’ve read massacio accurately. Nevertheless, I’ve attempted to ‘translate’ his comments into a format that might make it easier (and faster) to compare information contained within the SSCI report against its conclusions.

    Statement #1: The first speech is Cheney on August 26, 2002. He asserts that Iraq has resumed pursuit of a nuclear weapons development program, and said that Hussein would obtain nuclear weapons fairly soon.

    Here is my effort at translating the content in massacio’s comment into a table summary:

    (1) Saddam would need min 5 to 7 years for nuke development and therefore the nuclear threat was *NOT* immediate

    YES = CIA (Apr 01) ***** NO = unclear ***** MAYBE = none
    YES = DIA ***** NO = none ***** MAYBE = CIA

    If I read massacio correctly, he points out that the agency support for Cheney’s claims shifted, perhaps ahead of, or in response to Cheney’s claims (rather than to objective evidence) . In addition, it appears that DIA evidence did NOT support Cheney’s 2002 claims.
    YES means ‘the threat is not immediate’.
    MAYBE means ‘there may be a threat within 5 – 7 years at the earliest.

    (2) Saddam seeks aluminum tubes for nukes

    YES = none ******* NO = none ****** MAYBE = CIA (Apr 01)
    YES = ??CIA ****** (NO = DOE, DIA, INR ****** MAYBE = none

    If I have correctly interpreted massacio’s information, it appears that three agencies provided analysis that make Cheney’s claims preposterous by 2002. I have placed a ??CIA notation under “YES” for 2002 to signal that I’m not entirely sure I am correct in assigning CIA to this category here.

    (3) Saddam seeks to restart nuke program

    YES = none ***** NO = ?? ***** MAYBE = CIA, DOE
    YES = CIA (Aug 02) ***** NO = ?? ***** MAYBE = DIA (’has not abandoned the [nuke] program”)**

    Again, in 2001 two agencies thought he ‘may’ restart his program.
    In 2002, the analyses did not support Cheney’s claims.

    To repeat: I’m not certain that I’ve correctly interpreted Massacio’s information. Nevertheless, if I’m even half correct, then he makes a hugely important point — the TEXT and language of the SSCI conclusions are directly contradicted by the EVIDENCE. He says the report is characterized by this confusion. It’s my hunch that people can’t ’see’ that because they don’t have time, expertise, patience to wade through the entire document(s).

    I’ll see whether I can find time to go back to that thread on Sunday and do a bit more, if this leads in a direction that is helpful… feedback…? thoughts…?

    ** Hardcore types would argue that this belongs in “yes”, and it’s a judgment call. This is phrased as a negation, so if it is a ‘yes,’ it’s the weakest possible type.

    • masaccio says:

      rOTL, as I was writing it, I was thinking it might be hard to understand in that format, so I kept putting in and taking out paragraphs and things like that. Your idea about tables is a great suggestion, and the next time I do this, I will look at other ways of dealing with the material, including the table approach.

      One of the larger problems is that we are working with the Senate report which describes another report, which, as far as I know, is still classified. The declassified portion is here. The net effect is that we are working with less than full information. That is why I put my conclusions as I did: the SSCI Phase 2a report supports a much stronger conclusion.

      On the dissemination issue, I have to say that reading these documents carefully takes a lot of time. I started reading the documents the evening they were released. Thursday evening, I figured out what I wanted to say, and started rereading in preparation for writing. I started writing Friday evening, and finished Saturday. By the time a working guy with plenty of things that need done besides this, like me, can read and comprehend the material, and then write something cogent, the public eye has moved on to the next biggest thing ever. That is why I admire EW. She is so quick at grasping the significance of material and writing cogently about it. And, she left the thread open so I had a place to post it without annoying people who aren’t interested.

      Dissemination is a constant problem. I occasionally cross-post to Kos, but I don’t post there enough, and I scroll off pretty quickly, kind of like drational. I mentioned in the comment that the editorial writers at the NYT agree with me. On Saturday, they wrote:

      It has taken five years to finally come to a reckoning over how much the Bush administration knowingly twisted and hyped intelligence to justify that invasion. On Thursday — after years of Republican stonewalling — a report by the Senate Intelligence Committee gave us as good a set of answers as we’re likely to get.

      The report shows clearly that President Bush should have known that important claims he made about Iraq did not conform with intelligence reports. In other cases, he could have learned the truth if he had asked better questions or encouraged more honest answers.

      The report shows that there was no intelligence to support the two most frightening claims Mr. Bush and his vice president used to sell the war: that Iraq was actively developing nuclear weapons and had longstanding ties to terrorist groups. It seems clear that the president and his team knew that that was not true, or should have known it — if they had not ignored dissenting views and telegraphed what answers they were looking for.

      I don’t know that we can do better with dissemination than this.

      • readerOfTeaLeaves says:

        By the time a working guy with plenty of things that need done besides this, like me, can read and comprehend the material, and then write something cogent, the public eye has moved on to the next biggest thing ever. That is why I admire EW. She is so quick at grasping the significance of material and writing cogently about it.

        You’ve nailed so many issues here.

        But this is so seminal that it’s wrong to just ‘move on’.
        There’s that scene at the end of “Saving Private Ryan” where Tom Hanks, dying, tells Matt Damon, “Earn this.”

        This isn’t about ‘increasing shareholder value’.
        It’s about acknowledging that there are things we owe to one another.
        One of those is the courage to be honest; the toughest, but most necessary thing.

        More later…

  32. Laura Doty says:

    Hi there. I see that TRex is down, so you can’t follow Spook’s link to my comment there. here’s the letter in full that I received from John Walcott at McClatchey, after I sent him your post, bmaz, asking that McClatchey feature this issue more prominently:

    Thanks for writing.
    Fear not, and stay tuned. Next Sunday, June 15, McClatchy will begin publishing the most extensive investigation to date of the treatment of detainees, not only at Guantanamo but also at Bagram and Kandahar in Afghanistan. Reporters Tom Lasseter and Matt Schofield tracked down and interviewed 66 former detainees-more than any other organization, media or NGO, we think- in 11 countries on three continents.
    They also interviewed former prison guards, interrogators, translators, Pentagon and administration officials, defense lawyers and Afghan intelligence and security officials to paint the most complete picture we could of who U.S. picked up, how and why, what happened to “suspected enemy combatants” and who’s responsible.
    The package was overseen by the McClatchy Washington Bureau’s Pulitzer Prize-winning foreign editor, Roy Gutman, the editor of “Crimes of War” and the author of a new book on U.S. policy toward Afghanistan before 9/11. It includes five main stories, a video, photos, numerous sidebars, the stories of all 66 former detainees and an online database.
    If you don’t live in an area served by one of our papers, or even if you do, you can find the whole package at starting on Sunday, June 15 and running for five days.
    Please pass the word, and thanks again for writing.
    John Walcott

  33. PetePierce says:

    There is some nice gathering of sources for this post. Local lawyers who have volunteered to work at Gitmo who are experienced from excellent law firms have been saying for a couple years that Gitmo is a surrealistic travesty.

    Looming large over Gitmo is a Supreme Court opinion that could be released as early as tomorrow. Those companion cases are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).

    One book I have meant to read that is not on Gitmo per se but sure provides the context for it and DOJ’s very systemic contribution to it was reviewed in the NYT Book Review this morning, Review Erich Lichtblau’s Bush’s Law I think reading this review will make people want to read the book.

    Then there are the victims of the administration’s frantic, post-9/11 bloodhounds, who rounded up hundreds of people and held them incommunicado, mostly without charges, and occasionally prosecuting them simply because they were in the wrong place at the wrong time, had the wrong names and religions, were wrongly identified or were drawn into conspiracies wholly created by the F.B.I. Not Afghans and Pakistanis, mind you, who were swept up on the battlefield or kidnapped off the streets and thrown into Guantánamo or secret jails, only to be quietly released years later without so much as a fare-thee-well. Too often it was the guy next door, people like Brandon Mayfield, who became part of the collateral damage of the “war on terror.”

    A 37-year-old Oregon lawyer in 2004, Mayfield was wrongly linked to the Madrid train bombing by imperious F.B.I. agents who brushed aside the cautions of Spanish investigators and matched a fingerprint found at the scene to his. It was a terrible mistake. What drove the investigation was the fact that Mayfield, an Army veteran, had married an Egyptian-born woman who had come to the United States at age 5. A slow convert to Islam, he attended the same Portland mosque as Arab immigrants who had earlier been arrested as terrorists.

    Lichtblau, a Pulitzer-Prize-winning journalist at The New York Times, adds creepy new details to previous accounts of the case. You feel the growing apprehension, then fear, as Mayfield, his wife and children detect that someone has been secretly breaking into their house for many weeks. One day one of the children is at home as the door handle jiggles. He scurries to the attic, terrified.

    This is Cujo, not homeland security. Mayfield was detained and, according to his lawyers, threatened with the death penalty. Only the Spaniards’ eventual arrest of the fingerprint’s real owner, an Algerian, saved him.

    I’d like to make it very clear that in full view of every attorney who has recently or is now practicing in the SDNY and every bar association that is vibrant there, Mike Mukasey as a district court judge was a very active dysfunctional participant in the rounding up of hundreds of innocent “material witnesses.” Hence, people I know call him “Material Witness Mukasey.”

    Someone asked Bmaz the other day about the prospects of suing the government for malicious prosecution. Congress has set the bar very high in the code section that controls it, with enough legislative intent language to make it difficult to do, and easy for law clerks straight out of law school to pen the case law that reenforces that difficulty.

    But attorney Branden Mayfield, arrested in Portland Oregon did it, and he took several million dollars from the pricks and prickesses at DOJ (in reality he took your gas money that these people squandered with their dishonesty and inept, incompetent egregious lawyering–something that has become a Main Justice trademark in the Bush administration and makes former AUSAs I know cringe. Mayfield is a Muslim. You should get very used to that word because the McCain campaign and their 527s are going to morph it into profanity reinforcing the vibrant pulsing bigotry that is a stong part of the infrastructure of many US citizens.

    Elden Rosenthal, an Oregon civil rights attorneyrepresented Lichtblau when he sued the government.

    Rosenthal successfully overturned parts of the Patriot Act’s provisions on the grounds that they were unconstitutional. He won a $2 million settlement and public apology from the federal government for his client Brandon Mayfield, who was wrongfully jailed for two weeks as a presumed terrorist in connection with the Madrid bombings. The settlement preserved Mayfield’s right to sue over the constitutionality of the PATRIOT Act which authorized his detention, and Rosenthal continues to litigate those issues. Bad fingerprint analysis, lying FBI agents, religious discrimination, wrongful detention — Mayfield v. USA remains the most prominent test case of the PATRIOT Act in the courts today.

    An objective view of Mukasey reviews a dark, cowardly cowed and compliant little bureaucrat who has little or no respect for Rule of Law.

  34. PetePierce says:

    I might add that several local lawyers have now sued the government over conduct at Gitmo including wiretapping and taping all attorney client meetings beyond what has been allowed egregiously in the so-called “Patriot Act.” This is in a case that could have large legal ramnifications beyond Boumediene’s opinion that should come very very soon.

  35. JThomason says:

    The appeal to apocalyptic eschatologies is really not something that is novel from a historical perspective. And from a humane point of view is it really any wonder that this administration came into power on campaigns championing Fukyama’s End of History and other idealistic “new paradigms” of knowledge. In this approach the lessons of time are but material for pompous costumes in a naive self-aggrandizing farce.

    Consider this renunciation of the pitfalls of this political trop as it was acted out in Russia in the mid-Twentieth Century:

    O, we Russians paid dearly for the unconditional trust we placed in a strong-willed man, whom many of us viewed as a benefactor of humanity. We will not repeat the same mistake! There are signs that distinguish a person worthy of such a mission from an evil genius. The latter is gloomy; the former is bright with spiritual vitality. One consolidates power with executions and torture; the other will not spend a single day seeking power, and when that individual accepts power no one’s blood will be spilled. Once will cultivate the cult of personality across the land; the other will consider such glorification ridiculous and repellent. Once is unapproachable; the other is open to all. One is wracked by an unquenchable thirst for life and power and hides from imagined dangers behind impenetrable walls; the other is free from worldly temptation and calm in the face of danger, with a clean conscience and unshakable faith. They are two antipodes, the ambassadors of two irreconcilable camps.

    The Rose of the World, Daniel Andreev. An apocalyptic view relieves the actor of being accountable to history and the possibility of adaptation. A sad day for American jurisprudence indeed.

  36. PetePierce says:

    It’s time for the last case of the 2007-2008 to drop or plop depending on your perspective from the Supremes. It could drop tomorrow or Thusday at 10AM either day. They will also announce cert. for at least 14 cases (3 per day Roberts says) next term aka “OT 2008″.

    It’s arguably their hardest, harder than the Santos money laundering plurality last week.

    Boumediene v. Bush

    From Oyez:

    In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts’ jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

    The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to “all cases, without exception” that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court’s opinion in Hamdan v. Rumsfeld, which had allowed petitions like Boumediene’s to go forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare reversal, the Supreme Court granted certiorari after initially denying review three months earlier.


    1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba?

    2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution?

    3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions? 4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review?

    This is Marty Lederman’s analysis of what Boumo]ediene might bring. Will Boumoudiene be a Scaliadiene or a Ginsbergdiene?

    What Might the Court do in Boumediene

    Thoughts on the Oral Argument in Boumediene v. Bush:

    Oyez Baseball

      • PetePierce says:

        Some well known Supreme court/con law scholars have ranked Boumedine as one of the most important opinions this decade because of its fundamental contexting of habeas. I used to know several sites that had all kinds of mathematical ways devised by lawyer who frequently appeared before the Court to figure out as things got to mid-April by process of elimination who would get the assignments.

        But there is some abra-cadabra factor in them where the Chief can have considerable influence.

        • drational says:

          so here is a question:
          If Boumediene is decided and the detainees have habeas rights and review, what happens to the ones who have been arraigned and given up their lawyers?
          what if the final 2 show trial defendents are allowed to self-represent before the decision hits?
          do they automatically get review, or will they need to give up aspirations of martyrdom to take advantage of the ruling?

          Can Bushco still get their 5 kangaroo convictions despite Boumediene outcome?

          • PetePierce says:

            All are good questions but if the Court decides that they are entitled to review, they can still elect to go pro se in the federal court system, and a judge could appoint an advisory attorney, but I’m not familiar whether it is the same in the military system. And this case could have far reaching results:

            Boumediene’s continuing falloutGiven the chance to have access to Idaho’s David Nevin
            and Scott McCay I’d jump at the chance, and of course ACLU had raised $15 million for a defense fund for Gitmo detainees.

            You remember that just last month, the judge heading the commission hearing the Salim Ahmed Hamdan “trial” postponed the date for starting that trial until July 21, and that is part of Carol Rosenberg’s coverage> Bmaz discussed above.

            With the Military Commissions Act (MCA) you are in such a surreal environment where all constitutional protections are tossed out at this pre-Boumediene point in time.

            This crazy administration is off the deep end insisting on trying to hold trials based on heresay, evidence they can keep secret from the accused and the defense, and so-called evidence obtained via torture. And to put icing on the cake, some attorneys who have tried to represent Gitmo detainees claim they are being taped at all times and very limited in access to their clients and even in what they can use to take notes and there are now suits against the government for not providing clientattorney confidentiality at Gitmo.

            I don’t know what the impact will be on cases before the opinion hits. I thought that this was the last week, but there are apparently 26 cases left to be decided this term
            and that will go into late this month. So I am revising m handicap that Boumediene is announced this week based on that. I didn’t realize they had gotten to June 9 with 26 cases to announce.

            I would imagine that cognizant of the chaos with military tribunals, they will try to word the opinion so that it impacts all the trials including the show trials, but of course that depends on how narrow they decide to make it.

            It’s just my guess, but although they tend to try very hard to rule narrowly, this is one time when they have questions to settle that should prevent that.

            I wanted to mention Boumediene in this thread because it could have impact on these trials, and until I saw the number I thought it was the last or one of the two last cases to be decided this term. I know differently now.

            The most difficult cases always seem to be put off to the last couple weeks. After 6 years of “futzing around” the Pentagon now feels the sudden urgency to get KSM to trial. I agree with ACLU’s Anthony Romero that this is being positioned as is so often the case with the Bush administration to ramp up fear to help McCain and other candidates in the elections.

  37. sailmaker says:

    Is this letter the beginning of a set up for investigation of our torture in the International Court? The House is asking Mukasey for a special prosecutor on torture because it can not investigate itself. IIRC we opted out of the World Court in 1996, saying that we would police ourselves. If Mukasey does not investigate, and does not supply a special prosecutor, does the International Court then have jurisdiction?

    • PetePierce says:

      I don’t think what the International Court does has any relationship to Mukasey or any executive decisions of the US government for it to function.

      I also haven’t seen many significant consequences from deliberations of I.C.J. that impact the United States.

      ICJ Decisions

  38. sailmaker says:

    I was thinking of the ICC, war crimes, rather than arguments between countries which would be under the jurisdiction of the UN sponsored ICJ (if I understand their mission correctly, IANAL).

    My idea is somewhat oblique: maybe, if we do not do as we said we would in 1996 and police ourselves, the ICC would take action themselves, using this letter as basis for our non performance?

    • Jim Clausen says:

      Your comment jarred a memory for me from Philippe Sands testimony before the judiciary and on PBS about the US failing to act on war crimes would cause the international court to take jurisdiction.
      IIRC Sands stated that he already had been asked for all his materials by I believe a german prosecutor.

    • PetePierce says:

      There are several people here much better versed on the workings of the International Court and their jurisdiction than I am–probably most and your theory may not be that oblique.

  39. klynn says:

    Just catching up from weekend graduation activity…bmaz great post. Great catch on the news…Quite disturbing…

    bmaz, IANAL as you know. Allowing him access to speak to the other detainees and act as criminal influence in terms of their choices in the legal process is beyond comprehension. Is this an unusual example of bad faith use of civil process even though there is no “gain” by a party here, (except the government of course)?

  40. drational says:

    So Boumediene SHOULD give them an escape hatch.
    1. Electing to go pro se requires them to want to defend and not be martyred…
    2. Delaying proceedings requires judge to rule- and didn’t we have a judge replacement recently because the prior one was too fair?

    ”some attorneys who have tried to represent Gitmo detainees claim they are being taped at all times and very limited in access to their clients and even in what they can use to take notes and there are now suits against the government for not providing client attorney confidentiality at Gitmo.”

    Makes it pretty clear how they knew to split al Qahtani out of the prosecution of 5.

    And if you believe pushing the show trials forward is important to the DOD and Administration, this may explain how KSM might have been tipped off to al Hawsawi collaborating with lawyers to mount a possible defense (someone told him).

    • PetePierce says:

      So Boumediene SHOULD give them an escape hatch.
      1. Electing to go pro se requires them to want to defend and not be martyred…
      2. Delaying proceedings requires judge to rule- and didn’t we have a judge replacement recently because the prior one was too fair?

      You’re correct. And there is more news today along the lines of the Bush administration and the DOJ who is really running this making complete imbeciles out of themselves.

      Army Judge Replaced at Trial for Detainee

      But it got even worse the last few days:

      Lawyer: Gitmo Interrogators Told to Trash Notes

      San Juan, Puerto Rico – The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.

      The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.

      I anxiously await what Boumediene might and should do to overturn the MCA. It was not announced today, and it could be announced on Thursday, but if I know them, they will wait until 6/23 or 6/26.

      As I said, I know lawyers who have tried to defend at Gitmo and are suing for warantless wiretaps. This is your friendly DOJ and NSA they are suing.

      Gitmo Attorneys Sue NSA and DOJ

      Today’s U.S. Supreme Court Order List and opinions in argued cases: The Court today has issued opinions in the following four argued cases:

      1. Allison Engine Co. v. United States Ex Rel. Sanders, No. 07-214. Justice Samuel A. Alito, Jr. delivered the opinion for a unanimous Court.

      2. Quanta Computer, Inc. v. LG Electronics, Inc., No. 06-937. Justice Clarence Thomas delivered the opinion for a unanimous Court

      3. Bridge v. Phoenix Bond & Indemnity Co. Long Family Land & Cattle Co. ., No. 07-210. Justice Thomas delivered the opinion for a unanimous Court.

      4. Engquist v. Oregon Dept. of Agriculture, No. 07-474. The Chief Justice delivered the opinion of the Court, in which Justices Antonin Scalia, Anthony M. Kennedy, Thomas, Stephen G. Breyer, and Alito joined. Justice John Paul Stevens issued a dissenting opinion, in which Justices David H. Souter and Ruth Bader Ginsburg joined.

      It’s very rare to have 3 unanimous opinions on one day, and it’s hard to predict who will deliver Boumediene. I hope it’s Stevens, Ginsberg or Souter doing the right thing, but I know I can’t predict this Court. When it comes to habeas and court primacy, you could even get a very favorable opinion out of a conservative justice.

      This is a huge opinion–and can be a landmark opinion of sorts. It all depends on them.

      It is a chance for this court to grab Bush and these egregious pricks on Senate Judiciary by the neck, smack them in the face several times and leave them on the ground with a few kicks. That remains to be seen. The MCA was rep, rehensible and one of the worst pieces of legislation in the history of Congress, but by now we’re used to seeing a parade of horribles. That’s why McCain needs to be defeated and downticket Democrats like Al Franken and Jim Martin need to be elected.

      BTW Al Franken would be a very constructive serious Senator. He is totally plugged into a constructive progressive agenda. He’s far from that SNL group of characters he played although the general public doesn’t understand it. I used to tape his radio show and he had many serious discussions with terrific people like David Sirota who was a regular.

      Franken ran every bit the equivalant of the FDL Book Salon 5 days a week and more. I hope he beats Norm Coleman.

      As to pro se perhaps someone will comment who has lawyered in the Armed forces. If they want to be martyred and they are able to be pro se, they could be. I don’t see their two fantastic lawyers however, quiting nor their dedicated military lawyers. They will be a presence in that court room, and I hope will have some time to actually build rapport with their clients.

      Remember DOJ, NSA, and CIA are at Gitmo supervising torture and treatment of prisoners to make them hate and distrust their lawyers even when they are the best and brightest this country has to offer.

      DOJ always wants to get as close to the Star Chamber modality as they can. It’s not about justice for them; it’s about ramming home the message that they won.

  41. PetePierce says:

    This process that Bmaz has depicted above, has a backdrop against which the civilian and military defense lawyers have had 3 months to prepare and try to gain rapport with their “clients” and the government has had six years to prepare as the reprehensible Bush government (that’d be ours) tries to stage this dog and pony show in time for McCain’s run to continue more of the same.

    Any client who experiences years of this treatment at Gitmo which is harsh as a baseline, and whose access to their attorneys in a trial that is sprung “all of a sudden” is predisposed to being hostile and suspicious of their attorneys. The government of the U.S. sets the stage for an attorney client relationship to fail even with the best lawyers suddenly injected into the process that this country can produce.

    I would remind everyone that former US Attorney Sheldon Whitehouse and many other former DAs have been completely cognizent of this clusterfuck as they sit on Senate Judiciary commiitee. Orin Hatch is a typical former assistant DA who has never litigated for a second in a federal courtroom in a federal case who often lavishes himself with praise as one of the architects of the US federal judicial system.

    My point here is that the many lawyers and Congress have sat by and let this reprehensible egregious shit storm flourish, including the MCA that I expect Boumidiene to take apart this month despite the composition of the Supreme Court.

    • JThomason says:

      The cabal probably feels the Judicial Branch has less authority over the executive than Congress, and we know the opinion with respect to Congress.

  42. bmaz says:

    For any that wander back here, I am not sure about the status of appointment of advisory counsel for the detainees that have elected to proceed pro se, i.e. represent themselves. However, in a way, it may be somewhat irrelevant in this setting. Once a tribunal determines that a defendant is permitted to represent himself, even with an advisory counsel, all decisions and acts flow through the defendant. So, even if the advisory counsel makes suggestions on strategy, tactics and/or evidence, there is nothing compelling the defendant to listen to them or implement them. I would also fully expect that the government will take measures to insure that the advisory counsel is limited to one lawyer with no allocation for assistant attorneys and/or staff; not to mention restricting even further the access of the counsel to the detainee client, all of which would render counsel pretty useless. As far as I can tell, that will likely also maintain for Habeas relief application purposes as well (and the defendants will, pursuant to KSM’s orders, likely themselves waive all that and seek death and martyrdom); and if per chance, an attempt is made to pursue Habeas without the detainee’s consent, I would hazard a guess the government would suddenly “protect the rights of the detainees to represent themselves” and fight it all the way to the SCOTUS.

    This is all why this was such a beautifully (in an extremely sick way) diabolical little scam the government ran at the arraignment. It was pure, if totally demented, genius. It may get partially cleaned up along the way in the future, but the damage is so potentially pervasive that it is hard to imagine that it will not have been a game changer no matter what is retrieved in the way of legal sanity in the future.

    • PetePierce says:

      Thanks for the clarifications. I am not familiar with the military code of justice UCMJ and the modifications that are surrealistic happening at GITMO. And as you know only too well, attorneys who are trying to defend at Gitmo are being subjected to all kinds of arms length procedures. The story broke I linked over the weekend that Gitmo prosecutors were ordered to destroy notes. It just gets crazier. Thanks for the excellent post up top.

    • drational says:

      I am with you 100%.
      The Bush Administration is collaborating with Al Qaeda to make 5 martyrs by election time.
      But I don’t think they will actually get the blood; the Bush Admin just wants the convictions.

      Then when the new Congress/President reverses the torture policies and disbands the Kangaroo Kourt, Cheney and Addington can cluck at how the Democrat party stands in the way of the executive, making our country less safe.

      In 20 years all the sampson/goodling/paulose federalist pods will have grown up for the fourth cycle of the Nixon executive.

      • PetePierce says:

        Cheney and the rest of the meme will be about purported safety in this election. If you get the chance, watch Fareed Zakaria’s new show on CNN Sundays GPS.

        They have talking heads for a change that don’t have an agenda as to terrorism and will give an accurate view of threats instead of the Cheney/Gillespie facade.

        For example, one of the places where Al Quaeda is truly expanding their base and converting thousands of people to their cause is Africa. You don’t hear a damn thing about that from this administration–just a distorted mantra that we’re fighting only Al Quaeda in Iraq. If Muqtada al-Sadr decides to go, and he still has control of enough forces,, this adminstration and McCain aren’t going to be able to pretend it’s AQ.

  43. bmaz says:

    Heh, well, I don’t know a whole heck of a lot about the UCMJ either; but I know the standard drills in regular criminal trial courts and you can pretty much extrapolate out the way things will go in the Guantanamo kangaroo kourts. I sincerely hope I am wrong on what I have laid out; regrettably, I am pretty sure I am not.

  44. Mary says:

    I’ve been off the nets for a couple of days or so, but I am glad to find this here bmaz. Thanks.

    Another one that got to me was the defendants being asked about why they are on psychotropic drugs and the responses being cut from the press feed. Isolation in abuse for years, while being the subject of psychological and physical experimentation expressly intended to make them distrust their surroundings (rightfully so in most cases) then told – here ya go, here’s the lawyer we are giving you.

    The recent revelation from Khadr’s lawyers (I’m wondering if the Prosecution “got around” to turning over that info only bc they thought it might be reflected in some of what the Canadian guys had and might be ordered to turn over by Canadian courts) as to evidence destruction is pretty much what everyone who was paying attention knew was going on, but without realizing that someone would hold onto the documents telling them to destroy evidence even while destroying the evidence.

    Re: Boumediene, I’m not as optimistic as some here. The oral argument did not seem to go favorably towards striking down the MCA, at least on the grounds argued and proven. The problem with the process is that there isn’t a “catch all” case where the evidence of all the matters stacking up can be shown. Instead, there’s been a pick and choose by gov on what gets through the system and a pick and choose in the civilian setting too, all of which have established horrible precedent.

    But it’s not the Executive and the Courts alone that have set up the horrible precedents – it’s the way the Democrats in Congress aided and abetted in everything they did and have done. Hamdan hung on a very slim thread and that thread was handed to Congress to hold. They cut it, deliberately and without any care or concern for aiding and abetting and providing amnesty for war crimes. Harry Reid is, in the end, not really any different from Bush and Cheney.

    • PetePierce says:

      This is all true. It is reprehensible that a private security company (how many billions are we pissing away on them?) cut off the sound several times and one of them was after the question about psychotropics. The defense and the public doesn’t have a clue what has been and is in these people’s blood streams. And there is the note trashing of the interogators called as witnesses.

      And the famous Kennedy question may well portend a win for the government.

      Kennedy’s question

      Audio of oral argument in Boumediene

      Briefs Boumediene

      And we don’t have a clue how adequate the lower court, the D.C. Circuit’s proceedings are because they are a frigging secret.

      Thoughtsand comments on the oral argument Volokh Conspiracy

      Boumediene isn’t a perfect case true, and I share your pessimism about this Court with several 75+ year olds who may retire soon (older than John McCain). As others have commented, the Supremes already have opined they view Gitmo as pat of the habeas constellation, and they will be ruling on adequacy of the D.C. Circuit’s secret hearing an enigma enshrouded in a mystery.

  45. Mary says:

    123 I’d be very surprised that Zakaria, who didn’t disclose his secret Wolfowitz meetings with others to help strategize for the Iraq war and, once they were revealed by others, was belligerently unapologetic, would have people with no agenda. People just as good as he is at hiding their agendas maybe …

    Good to hear about the African coverage though. Feingold has tried and tried and tried to push this message.

  46. Mary says:

    9 – “One of the things that has kept some of us upbeat about the Khadr case is that the kid still seems to be attached to his (exceptionally good) lawyers, in spite of what sounds like pretty serious abuse when he was first detained. “

    I think he has stayed with his Canadian lawyers, who were later on the scene, but I thought Colby Vokey was his JAG and that he refused to keep working with him. Vokey did a great job for him, despite almost getting thrown in jail for it. It’s sad to see someone like Haynes end up at Chevron, Goldmsith at Yale, etc. despite their roles in having JAG after JAG forced to choose between ethics and honor on the one hand, and a career they love on the other, all over as unpopular a cause as Goldsmith can gin up in his op pieces, defending the “worst of the worst”

  47. Mary says:

    21 –

    The general standard, even in regular federal courts, is if a defendant is mentally competent, and is knowing and intelligently (strictly in the legal term of art sense, i.e. understands what he is doing) in his desire to waive assistance of counsel and represent himself, then he will be allowed to do so.

    And there’s where precedent comes so into play. We already have Padilla’s case, in “regular” court, holding that his physical and mental experimentation and abuse, uninterrupted for years, had no effect on his ability to assist in his defense. Not much more of a leap to say that being physically and psychologically abused for years until you had been programmed into becoming a willing martyr at trial, has no impact on ability to understand waiver of counsel.

    And then we have Fitzgerald’s Salah case, where the case law now holds that it is perfectly acceptable to introduce the statements someone gave under coercion as evidence against them, as long as a masked “someone” will show up and say that there was no coercion. My favorite part was how Judge St. Eve handled the hard evidence from logs that Salah was not returned to the normal prison population at the end of his interrogation sessions and was instead kept in isolation.

    Anyway, the case law has been cranked out to justify a lot right now. And the existing case law from the Sup Ct on the commissions pretty much says Congress can do what they’ve done.

    There are plenty of days the Democrats in Congress sicken me more than Bush or the succession of AGs in his administration.

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