Another Reason to Use Civilian Courts

This WaPo story–which tells how Mohamedou Ould Slahi and Tariq al-Sawah got special privileges and too much fast food at Gitmo in exchange for cooperation–focuses on the things the detainees get, like Subway sandwiches, their own mint garden, and their own compound. (h/t cs) But it really points to one more reason why civilian trials may be better than military commissions: because of the ability to offer something in exchange for cooperation.

With both the underwear bomber and Najibullah Zazi, officials were eventually able to get their cooperation investigating their ties with the al Qaeda network in exchange for the possibility of leniency (and for the underwear bomber, a promise not to try for the death penalty). And Jamal al-Fadl ended up being one of the key witnesses in the Embassy Bombing trial, which helped put US-based al Qaeda figures in jail for life.

Yet with Slahi and al-Sawah, there seems to be no easy way to reflect their cooperation. Rewarding these two detainees for having cooperated is considered “a hard sell.”

“I don’t see why they aren’t given asylum,” said W. Patrick Lang, a retired senior military intelligence officer. “If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

A current military official at Guantanamo suggested that that argument was fair. Still, he said, it’s “a hard-sell argument around here.”

Heck, in the case of Slahi, the government is appealing Judge Robertson’s order that he be released.

And, as a number of sources admit later in the EPU range of this article, we simply don’t have the means to account for cooperation in our disposition of higher level al Qaeda detainees.

A Justice Department-led review of the cases of all detainees at Guantanamo Bay, which recently wrapped up, decided that Sawah and Slahi are owed no special treatment. An administration official, speaking before the federal court ruling on Slahi, said the government wants either to prosecute them or to hold them in some form of indefinite detention without charge.

Some current and former military officials say there should be other options. The treatment of high-profile informants such as Sawah and Slahi, they argue, will affect the government’s ability to turn other jihadists.

“We are much behind in discussing and working out details of some form of witness protection program for the most potentially important and in-danger witnesses,” said a military official who has served at Guantanamo.

The former chief military prosecutor at Guantanamo, Lawrence Morris, said officials always weighed a detainee’s cooperation, particularly its quality and timeliness, before making a charging decision.

“We were not heedless to other factors, but our job was to make our best judgment from a criminal standpoint,” said Morris, who noted that the decision to bring a case against Sawah came after prolonged deliberation and consultation with intelligence officials.

So instead of providing an incentive for al Qaeda insiders to flip in exchange for special treatment, we instead push for indefinite detention for them (albeit detention softened by fast food). And we’re left with the kind of intelligence hack contractors can collect in the field rather than real inside information.

65 replies
  1. BoxTurtle says:

    I don’t care that nice works. I’d much rather beat ’em to death and then leave the bodies on public display to inspire their friends and families to cooperate with us.

    Ain’t I macho? Don’t all you women want me now?

    Boxturtle (Where’s my flight suit and codpiece?)

  2. BoxTurtle says:

    And on a less sarcastic note, WTF do we insist on being so stupid?

    Bribery works better and is a lot more effective than extortion. Before Bush’s War, Saddam offered to leave if we’d let him keep somewhere around $1B he’d stole from Iraq and agree not to hunt him down afterward. That sure seems like a bargain now, doesn’t it?

    After observing the Afgani for several years, if we’d REALLY wanted OLB we could have bought him from some warlord if we’d have been willing to negociate. Naw, they’re all terrorists, Bomb’s away!

    However, we are willing to pay bribes to find targets to bomb. So we’re learning.

    Odd how congresscritters seem to understand the concept of hush money to cover their own misdeeds, yet they seem to think everybody else responds better to bombs.

    Boxturtle (Madam, this is Sen Vitter. One more “diaper” comment, you get a 2000lb gift from the Air force)

  3. Leen says:

    “A current military official at Guantanamo suggested that that argument was fair. Still, he said, it’s “a hard-sell argument around here.”

    Sure appears that people like Lindsey Graham, Schumer others do not really want the public to hear truths told

  4. lakezoarian says:

    I think the best reason of all is… DISCOVERY! Proper discovery at the beginning of a “real” trial could bust open the 9/11 deception once and for all. If it goes to a military kangaroo court that will be the reason why.

  5. bgrothus says:

    These people did not hear, “You can catch more flies with honey than vinegar, ” I guess.

    Of course, a diet of “fast food” is a sort of death penalty, que no?

    • Leen says:

      I don’t think they want to catch “flies”

      Just shut down the information the debate. Shut it down.

      • DWBartoo says:

        “They” will soon suggest, Leen, with utter solemnity and gravitas, that … “reasonable people understand the necessity to let go of these mere policy differences, to move on to more important … and more needful things …”

        Before too long a time it will be said, ” … Only the deluded, selfish and hateful fringes, at the extremes of political activism, continue to raise these justifiably closed issues with false questions and obnoxious innuendo, adding nothing to the comity necessary among all true patriots during these days of dangerous threats to the Homeland, both by terrorists abroad and by homegrown dissension sparked and flamed by these same, deluded and dangerous, few who would question the integrity of this nation, impugn the morality of its leaders, and deny our great nation’s sacred promise to the oppressed masses around the world … they are an evil.”

        That will not be “official” policy, however, which will hold out the hope that the confused belligerents will come to to their senses, see the light, and recant their false notions …

        The first such public occasion of which will provide the proper backdrop to an Executive Order “signing” ceremony, with all due and appropriate pomp and circumstance, with just the right nuance of religious overtone to maintain awe, and a sufficiently armed “presence” to maintain the attention of the populace throughout the “process”. After a sufficient time spent beating around the Bush and the Obama, the public will be informed that austerity programs and “training” camps will be mandatory, owing to an unexpected and unanticipated increase in the cost of endless warfare, which, regrettably, requires the elimination of all social services and public utilities … “Would those with money … step to the right, please … and the rest of you are to leave the Mall immediately, the Government of the United States of America is now, and henceforth, PRIVATE PROPERTY … bailiffs will assist those who need help vacating the premises in timely and judicious fashion. That is all.”

        Naw, it can’t happen here.

        Who said that?

        Things will continue until morale improves.


        • Leen says:

          Lots of “move on, turn the page, next chapter, do not be about retribution, vengeance” comments have been coming out of peoples mouths on all sides of the issue for the last seven years. Obama too.

  6. alan1tx says:

    It’s important to keep an open mind, just don’t keep it so open that your brains fall out.

  7. behindthefall says:

    A possibly helpful reaction? Ease up on your lead-in sentence. Behaviorally speaking, you generate antagonism by starting with a slap.

  8. lakezoarian says:

    Excellent comment. And it’s especially good to see it here. At Daily Kos you would be banned in short order…

    • bmaz says:

      We are not real crazy about that truther shit either, thank you for not wasting our electrons with extended babble like”Public” did. It is not relevant to this thread and is impertinent. Stop it.

      • Synoia says:

        Ouch. Remind me to cut out the cut & paste from Drudge and Limberger.

        Although with Limberger one could probably not detect the cut part.

      • lakezoarian says:

        Sorry, bmaz, but I most certainly will not stop. And don’t you call me a “truther” either. I was in NYC on 9/11, only a few hundred yards from the WTC site. What I heard and saw was most definately an explosive demolition.

  9. eCAHNomics says:

    There was a really good panel on cspan2 this morning on location of terror trials. I caught only the end, but these apparently are the lawyers who are going to make it difficult for the admin to hold hokey made up military tribunals. The ones I heard were articulate, made sense, were calm, and were not very flattering of the O administration.

    • BoxTurtle says:

      They have the law on their side, they can afford to make sense. :-)

      Lots of things are going to be difficult for the government on these show trials. They will be challenged before, during, and after in real courts. A good lawyer could probably get a federal judge to delay those trials until the constitutionality was established. It’s going to be real difficult for the government to assure conviction while still meeting the constitutions right to due process.

      Now, ObamaLLC knows this better than anyone. And they’re already showing their end game: Even if KSM is aquitted, he will still be held forever without charge. But they’re not giving up. They know they’ve got at least three votes with the supremes for unbridled executive power, with a forth probable and a fifth at least willing to listen.

      My prediction: They not going to be able to set up the court system they want. They’ll try three or four times, with significant delay each time. Obama will leave this for the next administration.

      Boxturtle (And unless he pleads guilty, I don’t think they can even convict KSM!)

      • eCAHNomics says:

        Apparently there are 4 levels of appeal under the show trial system. So the circus will be going on long after O’s first term.

        • BoxTurtle says:

          They’re not likely to ever get that far. I don’t think any real court is going to uphold the rules on evidence and witness’s that the government will need to assure conviction. And if they’re allowed real lawyers, said lawyers will do their darndest to find issues they can bring before a real court.

          The first challenge will be to the court system itself, not of the defendents conviction under the system. That will take a long time.

          Boxturtle (Heck, some of these folks may die before they can be tried. Brilliant!)

  10. Synoia says:

    These people need some public accountability:

    “A Justice Department-led review of the cases of all detainees at Guantanamo Bay, which recently wrapped up, decided that Sawah and Slahi are owed no special treatment.”

  11. tjbs says:

    Are we one branch short of a full government?

    Seems to me a failure of government to prosecute the 28 known murders, classified as homicides, under questioning.

    We have a very adequate Judicial branch to expose the truth and follow the trail where it leads. Anyone arguing for military commissions or other such foolishness, should explain why there is a superior way to determine the truth rather then the courts. If this is so why shouldn’t the rest of the court system adopt these greater concepts?

    What’s missing is a truly independent DOJ a possible forth branch, non-political in staffing. That there is evidence of a criminal conspiracy to construct a systematic torture program and cover it up, up to the President, with his obstruction of justice in disobeying a court order to release the TORTURE PHOTOS is astounding in and of itself. These are actionable treasonous war crimes and the DOJ is frozen in political molasses.

  12. TarheelDem says:

    It’s what happens when Lindsey Graham is running the CIA. And Rahm is trying so hard to be bipartisan. And the liberals in Congress fear to be outspoken. And the public does not know what’s being done in their name. And the mayor of New York is a wimp. And the legal profession in this country has become a bunch of capons.

  13. Leen says:

    Jane Mayer sure stacked it up a while back
    “Holder, despite the controversy he has inspired, has not actually pushed for radical change. Indeed, critics in left-leaning legal circles have complained that he has kept too many of George W. Bush’s counterterrorism policies in place. For example, Holder’s Justice Department has continued blocking lawsuits by people who were subjected to extraordinary rendition—the practice of sending suspected terrorists captured abroad to countries known for administering torture—on the ground that such litigation would expose state secrets. Even some former members of the Bush Administration see more continuity than change. Bradford Berenson, who served as a White House lawyer when the Bush Administration was forging its controversial legal approach to terrorism, told me that “from the perspective of a hawkish Bush national-security person the glass is eighty-five per cent full in terms of continuity.”

    Holder told me that he was frustrated by much of the criticism over the handling of Abdulmutallab. “What we did is totally consistent with what has happened in every similar case” since 9/11, he said. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.” Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal. Even so, critics such as Krauthammer were denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a senior national-security official in the White House put it, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit, and take someone away without court oversight?

    According to Kate Martin, the director of the Center for National Security Studies, in Washington, the military can’t simply grab suspects inside the U.S. and hold them without charge or a hearing. “It violates the Constitution, which extends to everyone inside the U.S.,” she said. “You can’t be seized without probable cause. You have the right to due process, and to a trial by a jury of your peers—which a military commission is not.” Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,” which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.

    For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo. The makeshift military-commission system set up by Bush to handle terrorism cases has never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.

    “The government is currently receiving valuable information from David C. Headley, who was indicted last December, in Chicago, for his involvement in terrorism conspiracies in India and Denmark. And, last week, the Justice Department confirmed that Abdulmutallab was now coöperating with the F.B.I. A department official noted, “He has an incentive to talk in the criminal-justice system, which the other system doesn’t offer.” The key to gaining Abdulmutallab’s coöperation was the F.B.I.’s ability to enlist his family in getting him to talk. Holder asked me, “Would that father have gone to American authorities if he knew his son might be whisked away to a black site”—a secret prison set up in a foreign country—“and subjected to enhanced interrogation techniques? You are much more likely to get people coöperating with us if their belief is that we are acting in a way that is consistent with American values.”

    Read more:

  14. JohnLopresti says:

    The administration is delayed over political questions the courts will avoid ultimately. As for the comment about lawyers, or counselors, generically, these are some of our best and most humorous minds.

    The Obama administration may avoid the political pitfalls in exposing the weakness of the BushW legacy of executive detention and torture, yet, subsequent administrations also will need to address its pernicious effects. It would be an accomplishment if Obama moves some of the fora into the civilian system in a way that is concurrent in the news reporting. The people who want coverup for the OLC sanctioned war crimes will have their kangaroo, but there would be a simultaneous series of proceedings to show what the judiciary branch does better. Incongruously for all the modernity of society in the New World and Old Europe, governments nearly throughout these regions still are wrangling over how to expurgate cruelty. Here is the upper chamber of the parliament in Russia passing approval of the European Court of Human Rights in an article January 27, 2010.

      • bmaz says:

        This is neither the forum nor the subject matter thread for that type of comment. If you wish to discuss that, it is commendable and I suggest you post it on the Seminal as a diary and discuss completely and fully. In fact that would be welcomed, but this blog and, particularly this subject thread, is not appropriate and not the place. Thank you.

  15. robspierre says:

    At first glance, it seems ironic that this idiotic attitude comes from the same people that want to place “intelligence collection” ahead of proper criminal prosecution–the same folks that think–or pretend to think–that torture produces intelligence. It seems so wrong-headed, so counterproductive.

    But then I see my mistake: I’ve been assuming that asserting the rule of law and punishing/deterring crime was the objective. Think about it:

    * Mistreating cooperating suspects/informants cuts off sources of legitimate information that might actually solve and stop crimes.

    * Torture plants misinformation that makes crimes harder to solve while discouraging real cooperation by suspects and witnesses.

    The fad for torture and extrajudicial process thus makes perfect sense if you are trying to make “terrorism” last. If, for example, an American police state fits in neatly with your economic interests and political aspirations and if real “terrorist” crimes are few and far between, then the current approach makes the best of those that happen. We find ourselves slipping into a perpetual state of siege from which it gets harder to emerge every day.

    • robspierre says:

      Actually, I’ve been thinking that the biggest lie underlying the Security State is the suggestion that our legal process and normal investigative methods are luxuries that exist primarily to protect the rights of the guilty and maybe, once in a while, the rights of the rest of us. In fact, the rights and protections that the law grants the accused are only a means to an end, the end being the discovery of the truth.

      Our Constitution came about against a history full of false, politically and economically motivated prosecutions. Kings and prelates used torture to extract confessions and thereby shape events to suit an existing or desired power structure. Sometimes the powerful wanted the innocent condemned. Sometimes they wanted the guilty protected. Usually both. Truth or falsehood mattered little if at all. Power was everything.

      So the framers of the Constitution set up a legal system that codifies procedures for rigorously discovering and testing facts. As far as possible, nothing can be hidden or misrepresented. The laws that bar torture, exclude hearsay, decide the admissibility of testimony and evidence, guarantee the accused expert counsel, and require proof beyond reasonable doubt all exist to thwart the inventions, falsifications, and exaggerations that served absolute rules so well. Treating the guilty humanely and protecting the innocent are nice side effects of Constitutional guarantees and legal due process. But forcing us to act on the facts of the case rather than according to the powers of interested parties has been their real contribution to our democracy.

      In modern parlance, the legal system provides us with “actionable intelligence”. Like their monarchical antecedents, the advocates for extraordinary, extralegal reactions to events want exactly the opposite. Because, if we had real intelligence–facts–Americans might very well act on it in ways that wouldn’t be at all convenient.

      • bmaz says:

        Very nice comment, and exactly right. The legal system and rule of law were designed to protect society, not the accused. When it is lessened, as it has been seriously, we are lessened. The process is far more important than individual outcomes.

        • DWBartoo says:

          bmaz, to you as well, BRAVO!!!

          The TRUTH of the law, its function and purpose.

          Without those understandings, there is no civilization.


        • BoxTurtle says:

          Thank you. I have never heard it phrased that way before. We need no reason other than that to know that the commissions are a bad idea.

          Boxturtle (Going to use that line on a conservative friend of mine shortly)

        • robspierre says:

          Thank you. One point that I’d emphasize, though, is that our laws protect society BY protecting the individual.

          Once upon a time I was a medievalist. Medieval Germanic law protected society by containing or minimizing violence, not by exposing truth. The law recognized that, under the conditions then prevailing, Might did indeed make Right. The law made the best of a bad situation by automatically settling disputes in favor of the more powerful party–the clan with the largest number of members or the wealthy headman with the largest number of retainers. If you killed an attacker that had 100 relatives or served a rich chieftain and if you were poor and only had 50 relatives, the law condemned you. The winning side could exact vengeance on you or any one of your relatives. This was unjust in a modern or Biblical sense, but at least there wouldn’t be a pitched battle between factions, large number of casualties, and an extended blood feud.

          I bring this up because, to the framers of our Constitution, individual responsibility mattered. Whether a crime was actually committed and who actually committed it matters in a modern democracy in a way that it does not under a system of tribal loyalties and blood vengeance. To the ancient Germans, a murder reduced the number of fighting men in the tribe and was thus an attack on the existing power structure. Re-balancing power mattered. Events themselves did not. Individuals did not.

          Seen in this light, our Constitutional law protects society, but society conceived in a specific way: as a free association of individuals, all of whom are equal under the law. Such a society can only settled questions by resorting to the truth. The truth, the facts, are the one aspect of things that is not partial to power and the one thing that all individuals can agree on.

          The rush to extraconstitutional shortcuts is thus particularly pernicious because it attacks equality under the law and thus democracy itself. Notice how much of the appeal of torture and kangaroo courts rests on the idea that these measures expedite vengeance and express the will of “society”. “Society” in this case is framed as a proud and powerful Us that has been offended by a weaker, dishonorable Them. What They did and whom they actually injured matters less than the fact that They have dared to challenge Our power. This isn’t an appeal to justice as we have understood it in this country. It is an appeal for loyalty to Our group, so that the group–or more specifically its leaders–can protect us from the Other group. It is profoundly anti-democratic.

          In effect, those that demand extralegal “anti-terror” measures are demanding that we give up our society of equals under the law. They want us to accept a class society, where different laws apply to different classes and where the more powerful party always has its way. At first, the prevailing class is made out to be the one we “real Americans” are part of. But there are always classes within classes. Once we abandon individual right and responsibility for collective rights and guilt and once we let raw power decide our fates rather than facts, America is over.

          The rush to extraconstitutional condemnation and punishment is thus part of the same phenomenon we saw when the Supreme Court gave powerful, well-connected corporations rights hitherto reserved for individuals and when elected representatives let the gifts of a wealthy few outweigh the votes of the electorate. We are being asked to give up liberal democracy. In its place we are being offered the protection of an aristocracy of corporate CEOs and their hired political and judicial retainers.

          • bmaz says:

            Again, very nice and quite right. And that is why I responded below that the UCMJ would be fine. I would have no issue with that; it is an established system with checks and balances, that is and long has been accepted under American and international law as providing necessary due process. It is the need to gin up something different, out of thin air special for these people that runs afoul, because the only motivation for that is to cover up wrongs and sanction removal of established norms of due process. That materially weakens the entire fabric of our society.

            • robspierre says:

              UCMJ is indeed a particularly good example of what we are talking about. Military law gives the chain of command such enormous authority that arbitrary abuse of power is a major danger. For this reason, the UCMJ incorporates even stronger safeguards for individual rights and overall justice than civilian courts provide. This of course makes a court martial even less acceptable to our would-be anti-terror barons.

              As I understand it, Roosevelt’s decision to send Nazi saboteurs before a military tribunal is one of the claimed justifications for what is happening now. I recommend a very readable account of the business called “Saboteurs: the Nazi Raid on America” by Michael Dobbs.

      • klynn says:

        I echo many in the thread. Well stated comment. You could turn it into a diary.

        …But forcing us to act on the facts of the case rather than according to the powers of interested parties has been their real contribution to our democracy.

        In modern parlance, the legal system provides us with “actionable intelligence”. Like their monarchical antecedents, the advocates for extraordinary, extralegal reactions to events want exactly the opposite. Because, if we had real intelligence–facts–Americans might very well act on it in ways that wouldn’t be at all convenient.

        My favorite part…

        Thanks for the post EW. Thanks for the comment robspierre.

  16. mzchief says:

    And we’re left with the kind of intelligence hack contractors can collect in the field rather than real inside information.

    A great observation by EmptyWheel as usual!

    The level of systems automation in our culture today really is such that one could run a system– albeit very shoddily (but the churn and the losses of what would normally be considered a “waste stream” are converted into a “profit stream”)– with very little intelligent human input other than that of the Command-and-Control variety by the operatives of the Cult of Money. Next, in the system’s design, any parts of the system requiring human inputs/decision-making to make the system “go,” are compartmentalized across several “cogs” (EruditeWheel terms them “hacks”) that are embedded in and depend upon negative feedback loop subsystems (the ones I mentioned in which churn and loss create profit). next, the “cogs” don’t have to have to have geographic specificity thereby enabling a JIT “best shoring” (dispensibility) of the cogs. The way the modern communications infrastructure is presently structured *AND* the way people are encouraged to use it, is an illustration (e.g. hearsay, conflation and no fact-checking (and checksumming) by Faux News, CNN and other Pravda-esque systems). This is really modern organizational theory and practice first created by the military (, perfected during the rise of the multi-national corporations tax-haven hopping and treaty-distorting hunt for the best deal for themselves at the expense of labor, then gone viral in the re-purposing of government (i.e. Naomi Klein’s pith explanation in “Shock Doctrine”). No wonder Roddenberry created the theme of the Borg in his later work to antidote the “spiritual materialist” memes such a system thrives on such as “resistance is futile.” Although this is a bleak picture, such systems sow the seeds of their own destruction and are not inherently robust. The required very big, expensive, constant propaganda campaign by the minority to keep the system going eventually no longer elicits the desired results (“Escape from LA” [] is a great story about that with the classic line by the character, Snake Plissken, “Your rules are really beginning to annoy me”). Eventually the cogs figure out how to Borg the Borg and the landscape takes on a different complexion.

  17. lakezoarian says:

    Dear Emptywheel,

    If you are reading this comments thread, I would like to ask you a question. Are you aware that there is someone moderating the comments thread attached to your Diary who deletes comments? Do you approve of this? I’m not talking about spam or troll shenanigans, but material relevant to your Diary that apparently has been considerd “taboo” by said lurking mod.

    • PJEvans says:

      The Lurking Mod is empowered to delete comments that are completely out of line, and also to edit those that are overly long (as in violating fair use) or contain offensive parts.

    • emptywheel says:

      If comments are off-topic (as many of the undeleted comments in this thread are), particularly when they begin to hijack an entire thread, the mods will get rid of them.

      We put great stock in maintaining intelligent conversations in these threads, and when people come and hijack them, it really takes away from the effort that all the commenters make here.

  18. bobschacht says:

    I had an interesting thought this morning. We had hoped that, with the Obama administration, we would see the restoration of an independent DOJ that would pursue its mission with blind justice regardless of rank or status. Since it is now clear that the new DOJ is also under the thumb of the White House, I am wondering what different might be done.

    Then I remembered: in many (most?) states, the office of AG is elected independently of the Governor. Maybe it is time to do this on the national level, electing an AG separately from the presidency. Then we’d really have a people’s AG.

    BTW, the DOJ provides the following Mission Statement:

    To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.

    Is this new? It sounds like it. Didn’t there used to be something about the AG being the people’s AG?

    Bob in AZ

  19. JasonLeopold says:

    Regarding civilian trials there’s this report, which you would think would shut up the Liz Cheney’s (and Rahm Emanuel’s), etc. Worth noting:

    Justice Department gives Republicans requested info on terrorism convictions

    In a letter accompanying the report, Weich explained that the convictions include more than 400 defendants, many of whom were prosecuted in civilian courts under the George W. Bush administration. Weich also made the point that career prosecutors at Justice initially developed and have since maintained the information.

    Weich also noted that the Bush administration cited the data on “repeated occasions,” including in a book titled Preserving Life Liberty: The Record of the U.S. Department of Justice 2001-2005, released in February 2005.

    “Altogether, the department has brought charges against 375 individuals in terrorism-related investigations, and has convicted 195 to date,” Weich quoted from a passage in the book.

    In the Justice Department’s 2009 budget request, submitted in February 2008, the Bush administration trumpeted 319 convictions or guilty pleas in terrorism or terrorism-related cases since Sept. 11, 2001, Weich noted.

  20. DWBartoo says:

    It also falls to the law to preserve truth.

    That human beings of reason and of conscience may consider it.

    The law serves to protect truth as much as it must serve to protect people.

    The law does not serve that protects the few, in their criminal and infamous behavior, nor from the consequence of that behavior.

    The law does not serve that which debases or denies truth, absolute truth, such as we may know it … or human truth.

    The law is not a pristine intellectual exercise, but the essential real “stuff” of whatever human society we may claim, it is the true measure of our worth.

    The law does not serve that squanders time to protect the guilty or those too big to be accused …

    The law does not serve which teaches its students that they may use the law to destroy or twist the rule of the law … to the whims of arrogance or brute power …

    But the law is also ill-served by those who may practice it but who will not or cannot examine it, those who will not ponder their greater obligation to the law and to civilization itself by simply being among those who are privileged to know or to understand.

    (Those who practice the law, it would seem, have some serious obligation to understand what is occurring, for they shall, ultimately, have to take a “stand” and make use of whatever “teaching moments” they might “create” or they will surely face some very mild censure, in future, for having failed to respond appropriately when an aroused citizenry might have made a difference, a quaint concept, no doubt, on both levels. History will judge this.So far, history isn’t saying anything, but Cass has hinted at a few things … and, usually, lawyers are so polite … especially when they know they’ve “got” … it, the answer, or you. Yoo, too? – This has been another among of my urgings to the lawyerly; Get thee to the funnery!)

    When jargon translates to the unfettered license of total and complete secrecy, language has but one purpose; to obscure, to deny, and to hide truth.

    No legal system can endure the hypocrisy of allowing some people, some individuals, ostensibly under its jurisdiction, to do as they will, most damningly, in the name of the people, without consequence, for then they will be emboldened to always do as they, and they alone, see fit.

    No legal system may allow the creation of a tyranny without losing all respect for truth and for justice.

    Only those most familiar with the law, and its weaknesses, all tied to deference and to fear, may demonstrate the most utter contempt for it.


  21. lakezoarian says:

    Hi PJEvans and emptywheel, thanks for the replies. If you haven’t seen the deleted comment I’m referring to, posted by “Public”, it’s about the idea of “State Sponsored Terrorism”. Think of acts such as when the Nazis themselves burned the Reichstag as a way of seizing power. Your Diary is about trying terror detainees in civilian courts. What if it’s found that they are just patsies? This is why I’m asking. If that is true, then the deleted comment is neither off-topic or hijacking. Just sayin.

  22. beowulf says:

    Two points, First, for those detainees that the evidence is solid they’ve committed criminal acts, then why not give them a military court martial ? the Uniform Code of Military Justice in some ways, such as discovery rights, provides broader constitutional protections than even civilian courts. Second, for those detainees who aren’t criminally culpable but whom we haven’t released from Guantanamo because we can’t find another country to take them (or who we fear will just go back to Afghanistan to fight us)… the solution is right in front of us.

    If we improved our ties with Cuba, I’m quite certain they’d be willing give asylum and keep a close eye– it is a communist regime after all– on any detainees we released and sent walking out the front gate.

    • bmaz says:

      Personally, I would be fine with courts martial under the UCMJ and, as far as i know, such would be perfectly legal; but the Administration wants maybe even less to do with that than civilian trials because primarily of the factors you cite. The problem is that our government is determined to take the worst from both worlds, Article III and UCMJ, bastardize it even further and jam that square peg in the round hole of justice.

  23. Mary says:

    One of the interesting tidbits in the article is that when Congressmembers were being shuffled in and out on their “tours” of GITMO, the “interrogation” they were likely to see was one staged with Sawah

    When congressional delegations visiting Guantanamo were shown a detainee being questioned, it was sometimes Sawah — a willing participant — who was placed in front of them, according to a former military official. The overweight Egyptian was enticed with takeout from the Subway franchise on the base.

    Which explains a bit the rants of the guys like Inhofe and Sessions that the guys at GITMO were treated with kid gloves in their interrogations and instead of refusals to eat and nasal tubes, being overweight was the biggest problem for detainees.

    62 and prequels – nice set of comments, thanks for contributing them.

    Re 54 and responses – I don’t have a problem with a UCMJ proceeding within itself, but I’ll say I don’t think it is what we need for the overall problem, for the US, or for the rule of law. Basically, too much of what too many of those held have done are things that are crimes – regular old crimes, but not war crimes. I don’t think we do any service to forgo the regular old crime route and the exposures of information and infamy that go along with them, to try to bolster up the premise that we are fighting warriors who are only subject to war crimes applications and only from the time of the “war” (AUMF) forward.

    40 and 51 – good stuff.

    • bmaz says:

      Well, I would probably prefer Article III courts too; but that would be for a lot of reasons other than that UCMJ is a patently illegal abomination; it is not and at least you could see the rationale even if you don’t agree with it. It would arguably allow for greater security and flexibility as to location of the proceedings; but then none, or little, of the howling is really about that cover ruse.

  24. JohnLopresti says:

    Some early work in medieval barter systems in Iberia, predisposed me to appreciate [email protected]*s echos of the contributions of Germanic law to the civilian courts proposition in ew*s post. The opening remarks from [email protected] concerning [bureaucracy*s predilection for recycling mistakes as a surrogate for venue selection judgment] seem an interesting direction interpretatively. bmaz additionally has synopsized the vapidity of the current approach by the executive in its attempt to Grahamize justice, vividly here and in several prior posts. Somehow, I think there is a unison, as well, with Holder*s innate approach. There are plenty of places to try these detainees, but tortured individuals present an acute decisiontree angst in modern USA. LCheneyThiessens recognize an opportunity to rationalize an autoexculpatory, superficial rejuvenation of forms of corporal abuse long since banned in Western civilization. I wonder if Obama and Holder, together, see the choices as a way to restore some of the corruptions Sheldon Whitehouse exposed in the US attorney purge with respect to DoJ emasculation by the then-exec branch.

    With all respect to the other rpierr*s plight and contributions to modern political thought.

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