David Iglesias: Obama’s Used Car Salesman For Gitmo Show Trials

In January of 2009, right after Obama’s inauguration, there was a swell feel good buzz about the fact David Iglesias, the media darling face of Bush US Attorney Purgegate victimology, had been tapped to be part of a special team of prosecutors to bring sanity to the detention and prosecution of Guantanamo detainees. Iglesias said:

We want to make sure that those terrorists that did commit acts will be brought to justice — and those that did not will be released.

As with so many other facets of the nascent Obama Administration’s promise on the interests of justice, it appears to have been shiny window dressing for the same old story, same old song and dance. A year and change later the same duplicity, bad faith, and specious claims based on vapor and evidence from torture permeates the Obama handling of Gitmo detainees as it did under Bush and Cheney. That is not my conclusion, not that of the “far left progressives”, but that of impartial Federal judges like Henry H. Kennedy.

And today we have yet another reminder that nothing has changed. Iglesias, the photogenic exemplar of A Few Good Men is being walked out once more to shill for the return of Gitmo Show Trials. From Carol Rosenberg:

For hearings on whether U.S. forces tortured confessions out of a Canadian teenager accused of killing an American soldier in Afghanistan, the Pentagon Monday unveiled a new face to advocate military commissions:
Fired former Bush-era prosecutor David Iglesias, a key figure in the so-called Attorney-Gate scandal. He was mobilized last year to the war court as a U.S. Navy Reserves captain.
Monday, Capt. Iglesias was part of a Pentagon prosecution team going to Guantánamo for up to two weeks of hearings on which, if any, of Omar Khadr’s confessions cannot be presented to a jury at his summertime trial.
The chief war crimes prosecutor, Navy Capt. John F. Murphy, is leading the Khadr team in court. So the Pentagon tapped Iglesias to brief 35 reporters leaving from Andrews Air Force Base on Monday for the remote U.S. Navy base in Southeast Cuba, a larger than usual number of worldwide media traveling to the base for this week’s hearings. Many are Canadian.

Earlier in his Navy lawyer career, Iglesias has said, he worked on a hazing case that became a basis for the Hollywood hit set in Guantánamo, A Few Good Men, starring Tom Cruise and Jack Nicholson. Since then he has emerged a telegenic critic of Bush era policies.

So there you have it, the white knight Iglesias is not leading the legal charge cleaning up the detention/Habeas cases and prosecution status of the rickety and ill defined military commission effort, he is serving as the used car huckster for the old status quo. I guess Cal Worthington and his dog Spot were not available.

Lest anyone mistake the cravenly serious nature of what is really at stake here, Iglesias is being trotted out to sell a return to military commissions with few established known standards, that have been scorned and blasted by a conservative Supreme Court and, just for kicks, the government is fighting tooth and nail – complete with Holywood Iglesias – for the admissibility of tortured confessions from a child, Canadian Omar Khadr, in a military tribunal to be convened at Guantanamo. Gitmo, the gulag Obama railed on while a candidate and promised to close within a year of taking office. Well he didn’t do that, but Obama did fire the man in his Administration who actually thought the promise ought to be upheld and his word honored.

For an outstanding review of the renewed plunge off the military commission cliff we are headed, and overview of the Omar Khadr case, please go read Spencer Ackerman’s reporting at the Washington Independent:

Starting this week, something will happen that was never supposed to when Barack Obama took the oath of office. A military commission meeting at Guantanamo Bay nearly five months after Obama said the detention facility would cease to exist will hold a pre-trial hearing for Omar Khadr, a Canadian citizen captured by U.S. forces in Afghanistan in 2002 and accused of throwing a grenade that killed a U.S. soldier. At the end of the hearing, it will likely be possible to tell whether Obama’s changes to the military commissions created and advocated by George W. Bush — and most congressional Republicans — are substantive or cosmetic.

Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.

Please go read the entire article. In addition to his work for The Windy, Spencer is one of our own here at FDL. Spencer left this morning for Gitmo to report live. He will be featured on a continuing basis for the whole week on the commissions and process on Khadr at the Washington Independent. The other must see reporter is, of course, Carol Rosenberg at the Miami Herald.

59 replies
  1. klynn says:

    This? This after Judge Kennedy’s ruling on Uthman?

    I would like to hear Iglesias’ answer to that question.

    BTW-OT (sort of), bmaz, your “Court Slaps Government…” post left quite an impression on Son-of-klynn. Along with some of Marcy’s posts and Jeff Kaye’s posts, he came up with a great writing project for school. Thank you.

    • BoxTurtle says:

      It’s all about buying time. I think ObamaLLP just wants to be out of the way when the house (Court?) of cards tumbles down.

      I would like to hear Iglesias’ answer to that question.

      I can’t recall.

      Boxturtle (Well, somebody had to say it)

  2. skdadl says:

    Sorry, bmaz — I jumped the gun on the last thread, in response to Mary. I hope you won’t mind if I quote myself? *blush*

    Gosh. A celebrity prosecutor along for the ride. Swimming pools, movie stars, Esquire magazine …

    He’s going to be filling the reporters in? As well as your Rosenberg, there is a small posse of extremely well informed reporters from here going down to that trial. I doubt there’s anything Iglesias can tell Michelle Shepherd of the TStar, eg, unless he’s free to divulge DoD secrets, and I doubt he is. He could probably learn a lot from her, though.

    Do we know whether Joshua Claus has been summoned as a witness? You know, the interrogator who went to prison for killing Dilawar? Who was Khadr’s main interrogator at Bagram? Could someone ask Iglesias that question?

    • klynn says:

      They needed someone to go up against Spencer as soon as they found out he was going to be there. Remember Spencer does well on TV!

      • bmaz says:

        By the way, I added a bit to the end of the post from Spencer’s excellent report today at the Windy. He and Carol Rosenberg are already the only decent US reporting on the gig.

        • klynn says:

          Thanks for doing that. Although I was being a bit snarky in my comment @4, I also meant it in earnest. I think Spencer and Carol are the reasons Iglesias was recruited. Spencer’s TV interviews on Rachel have been excellent. He puts everything in terms anyone could understand.

          Thanks for the post bmaz.

  3. BoxTurtle says:

    He’ll sell it to the teabaggers, he might sell it to the part of the general public that’s paying attention, but he will NOT sell it to a real judge in a real court. Which is where all these will eventually end up.

    The major reason for those commissions is to allow evidence that would NEVER be permitted in a real court and to prevent defense attys from asking embarassing questions of witnesses. I do not believe that a real court will find any system that does the above constitutional.

    For crying out loud, why bother with the farce of a trial? The prosecution submits it’s evidence and the court decides on a penalty. Shouldn’t take 15 minutes and the defendant doesn’t even need to be there!

    Yes, ObamaLLP can have it’s own court system for terrorists. But he’s never going to get the rules of evidence he wants and he’s lawyer enough to know that. So this is more Kabuki to kill time.

    Boxturtle (He’s bound to be guilty or he wouldn’t be here!)

    • Jeff Kaye says:

      The major reason for those commissions is to allow evidence that would NEVER be permitted in a real court and to prevent defense attys from asking embarrassing questions of witnesses


      You got it! And thanks, bmaz, for pointing out the hollow emptiness of media darlings like Iglesias, who will have to bear the ignominy of trying to justify tortured confessions from a child for the rest of his life.

      I knew the military commissions were a pile of horse manure when the issue of tortured confessions or evidence was to be left up to the discretion of judges.

      Whole damn country is being hoisted on a petard of inhumane shit. Human beings are as nothing. Let’s criminalize whole swathes of them, as in Arizona currently. Unless the left wakes up and realizes they’ve been had, we are in for a long, hard ride.

      • laker says:

        Whole damn country is being hoisted on a petard of inhumane shit. Human beings are as nothing. Let’s criminalize whole swathes of them, as in Arizona currently. Unless the left wakes up and realizes they’ve been had, we are in for a long, hard ride.

        You got it… only it’s too late.. prepare for the long, hard ride.

  4. fatster says:

    Thanks for the article, bmaz, though I sure wish your message could have been different.

    Is the Guantanamo PR trip for the reporters the one that Spencer Ackerman will be attending? That should be interesting.

    And skdadle @ 2, I surely hope your reporters can make some headway through the fog of deceit and toward the truth.

    Will this never stop? (Rhetorical question only.)

  5. klynn says:

    I can’t recall.

    Boxturtle (Well, somebody had to say it)

    You turn rainy days sunny! Thanks for the chuckle.

  6. Mary says:

    Thanks bmaz!

    I am not in a good mulititasking place today – my work stuff is taking too much undivided attention for awhile – but I’m really glad to see this.

    Based on what seems to be knowable and avaialable about them, I’m not exactly a fan of the Khadr family, but this has always been a really disturbing case. Among other things, there are some very credible allegations that there was some coverup and shenanigans going on and that the grenade thrown was a) friendly fire or b)by someone other than Khadr. Because of the way things have been handled, there’s now almost no way to figure out what really happened.

    And it’s pretty much without dispute that he was 15 and had just had the US drop a pretty huge bomb on his house and was very badly injured prior to the grenade being thrown.

    And then there’s the uses to which he was put in US custody. Some of his abuse was to elicit a confession from him that he recognized Maher Arar as an al-Qaeda terrorist

    Wow – then lo and behold, we managed to get Syria to torture Arar into saying he had been where Khadr placed him.

    Mere impossibility is nothing when faced with the full force and power of the US military and intel services. And skdadl belowthread has already mentioned Khadr’s first interrogator –
    – and his involvement in the torture killing of Dilawar.

    Maybe when and if anyone does ask Iglesias the question skdadl mentioned, they can do it while holding this picture

    (Dilawar’s daughter, left fatherless after her father was tortured to death)

  7. SmileySam says:

    If memory serves me right Khadr was found buried under a fallen wall and wounded to boot. I believe his lead atty also quit the service in protest. Trying a 15 yr old kid for war crimes violates at least one, if not more of the treaties we have signed. He should of been sent home yrs ago or at least to a relative not living in the warzone.

    • skdadl says:

      SmileySam, that’s mostly right, although Lt-Cmdr Kuebler, a wonderful man who has given great testimony before a parliamentary committee and a number of public hearings here, would never have quit the case. His boss, Peter Masciola, the chief defence counsel for the commissions, more or less fired him (Kuebler accused Masciola of a conflict of interest), and even when the judge in the case overruled Masciola, Kuebler found his phone cut off, office locked, etc. I don’t know how all that has been sorted out, although I know that the squabble was put before Khadr at one point and he sounded confused and distressed. He now has two civilian American lawyers at GTMO, as well as a couple of very dedicated ones here, who have won Supreme Court cases against Harper. (The Supreme Court has ruled, eg, that Khadr’s rights were violated by CSIS and Foreign Affairs when they interviewed him at GTMO, and they’ve also kind of warned that Harper cannot use jurisdictional claims to cover up constitutional violations, although they haven’t acted on that yet.)

      Harper, I fear, needs absolutely no encouragement from anyone to enjoy Khadr’s plight.

      Here is a good CBC report from last year on the last-ditch attempt, the day before Obama’s inauguration, to revive the lying testimony about Khadr’s fingering of Maher Arar during Khadr’s interrogation at Bagram. I was so shocked when Fuller (FBI) repeated these lies once again — they were disproved years ago by CSIS and the RCMP in the course of exonerating Arar, who was never in Afghanistan, and who for part of the time in question was under RCMP surveillance. The Canadian government has made a formal apology to Arar and paid him $12.5 million in compensation, but he is still — still — on your no-fly lists, and the FBI are still peddling lies about him.

      In a way, the FBI are our strongest proof that Khadr must have been “coercively interrogated” at Bagram. Why else would a severely wounded and traumatized kid tell lies about someone he’d never met? Stay perverse, FBI.

      powwow @ 16, thanks very much for those texts, which I will go back to read more closely. You raise a central question. These are the charges against Khadr, the child soldier:

      * Murder in violation of the law of war.
      * Attempted murder in violation of the law of war.
      * Conspiracy.
      * Providing material support for terrorism.
      * Spying.

      Not that I believe that Khadr did fire back or throw that grenade (there’s a photo of how he was found, buried under rubble; a dead fighter was found next to him, on top of the rubble, and seems the more likely suspect; Khadr was found because an American soldier walked on him and he cried out in pain). However, how can one be in violation of the laws of war if others are shooting at one and one shoots back? How is that murder?

      Only, as you say, if one nation claims that it may unilaterally decide who fights lawfully and who doesn’t. I don’t know whether that argument would hold up in your civilian courts — would it? I can’t imagine it’s going to survive internationally.

      Obviously this case really angers me. Well, all the GTMO and Bagram and similar cases do. The destruction of Nuremberg angers me. I heard some idiot arguing earlier today that the military commissions at GTMO are the second coming of Nuremberg, and I tells ya, I needed to be physically restrained (the kittehs are very good at that). This is the anti-Nuremberg that we are watching, and it is just ripping me apart. It feels like a repudiation of my entire life since I was about twelve.

      Don’t cry for Big Daddy Steve, though. If Harper had been in power when Arar was in Syria, Arar would be dead in Syria right now. Harper is like Bush and Cheney; he loves the war on terror.

      • earlofhuntingdon says:

        Thanks for the details. My recollection is that the case against Khadr is weak and circumstantial and should have been dropped years ago as an example of battlefield (and political) stress leading to gross overreaction and on to political injustice under the rubric, “The State Can Do No Wrong”.

        • skdadl says:

          You know why they considered Omar a catch, eoh? Because of who his father was. His father really was al-Qaeda, a petty figure but something of a banker to the group.

          So he had dragged his kids around Pakistan and Afghanistan. They’d met people, seen places. When you come right down to it, that’s all that actionable intelligence means. Someone was somewhere, saw something, knew someone. Any of us could have actionable intelligence — in fact, all of us would, given the right circs.

          Change the game from criminal investigation (in which the police would interview you politely as a possible witness) to sexy intel work, and suddenly mere witnesses end up incarcerated and tortured and dragged through kangaroo courts just for being who they are, or for who the intel people thought they were and now know they weren’t but heaven forfend the intel people should ever be embarrassed, so let’s continue to torment the innocents just so’s the best and the brightest can save face.

          There’s another Khadr case coming up here soon. The U.S. is trying to extradite one of Omar’s older brothers, Abdullah, who was abducted by the ISI in Pakistan on a bounty payment from the U.S. and “interrogated” by them for a year, then returned to Canada in a clearly collusive arrangement with our peeps. I don’t want to jinx the judge’s decision in that case by saying that I have my fingers crossed, so I won’t.

      • Mary says:

        and @12 – I think SmileySam may be thinking of Kuebler’s predecessor, Colby Vokey.


        He didn’t exactly quit either – iirc, there were suggestions made to Khadr by interrogators, etc. that he couldn’t trust his military counsel and he basically fired Vokey. Vokey has since been pretty much forced out of the military – he also represented defendants in the Haditha killings.

        As an interesting aside with some of what bmaz has been working on elsewhere (and maybe for some of the families in Afghanistan and Iraq whose pregnant daughters had their corpses defaced by men digging bullets out of their bodies), the family of the soldier killed by the grenade filed civil suit against Khadr and his father (whereabouts unknown, presumed killed in Pakistan) while Khadr was in GITMO and without any of the exculpatory evidence the military was sitting on being made available. The judge had no trouble finding jurisdictional grounds to enter judgment against the Khadrs without any real participation by Khadr in the trial.


      • powwow says:

        Only, as you say, if one nation claims that it may unilaterally decide who fights lawfully and who doesn’t. I don’t know whether that argument would hold up in your civilian courts — would it? I can’t imagine it’s going to survive internationally. – skdadl

        Although that looks like a rhetorical question, skdadl, your guess is probably as good as mine, about what today’s judges would do with that argument. [I’d probably put it that one nation is trying to claim that only it may fight “lawfully.” When POWs are detained in genuine armed conflicts, the detaining power does have the right to decide – in a “competent tribunal” – whether its captives were fighting lawfully or not. That, being a power subject to little oversight as a rule in the midst of war (and obviously involving very little enlightened self-interest when only one side has captives held by their opponent), the Bush/Cheney administration couldn’t wait to, and obviously fully did, exploit it, with the unquestioning acceptance of Congress, to this day.]

        Art 5. The present Convention shall apply to the persons referred to in Article 4 [POWs] from the time they fall into the power of the enemy and until their final release and repatriation.

        Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.


        The federal district judges dealing with the Guantanamo habeas cases have at least been obliquely addressing this argument, if in piecemeal fashion. They are slowly outlining the limits of the President’s power to detain without charge during armed conflict, but obviously years after the fact, and in a painfully-halting process that’s being worked in around their regular caseload. I might be at least somewhat more confident that experienced military judges would act to prevent such an unbalanced, self-serving view of war, in our regular military courts-martial that deal with alleged violations of the law of war under the UCMJ, than would many judges in today’s independent, but Executive-cowed, federal judiciary, or, especially, in the irregular, post-capture-concocted military commissions, where military judges have mostly political pressure from above to guide them, in the absence of sound or long-established practice and precedent enforcing Constitutional limits and guarantees.

        FYI, skdadl, with regard to the Guantanamo CSRT hearings not qualifying as Article 5-compliant “competent tribunals” (as to “lawful” or “unlawful” enemy combatant – or non-combatant – status and thus POW qualification), see also the 12/2007 decision of the military judge in the Salim Hamdan case, here. [That military judge, with the concurrence of Hamdan’s defense team, held an Article 5-compliant hearing himself, after which he declared Hamdan to be an “unlawful” combatant. Naturally, there were no consequences brought to bear on the military chain of command for the fact that Hamdan was held for years in military detention without the benefits of POW protections and treatment before that 2007 Article 5-compliant hearing and decision.]

        Thank you for your anger, skadl. It’s what our sheltered and indifferent Members of Congress (and your Parliament and Prime Minister) should be feeling, except that they really can’t be bothered to “give a shit” about those who are perceived as unpopular – including uncharged, unconvicted, non-POW, demonized foreigners whose lives and liberty are at the mercy of a merciless, and unchecked, American military/CIA detention-for-interrogation program.

        As you note, we are slowly but surely reversing the good will, the good PR, the good of the example, the good, period, of what a better breed of Americans did at Nuremberg, adding deplorable and dishonorable insult to injury.

  8. Frank33 says:

    Excellent post. So Iglesias is a Bushie Cocktail Weenie after all. Alberto Gonzales told everyone that the Global War On Terror did not need the outdated Constitution. Iglesias agrees. But Bmaz, you should have a good feeling about flaming a Bushie at least.

  9. powwow says:

    Thanks for this timely post, bmaz. I’ll be watching for the reports from both Spencer and Carol.

    From Spencer’s pre-departure report:

    Under the commissions, evidence obtained under torture cannot be used, but the scope of the commissions’ allowance for coercively-obtained testimony remains largely unclear.


    Among the reforms [Obama] promised was to “no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.” By October, Congress passed and Obama signed the Military Commissions Act of 2009. Section 948(r) indeed enshrines the ban on statements made owing to those methods. But it gives [military] judges leeway to enter into evidence “other statements of the accused… only if the military judge finds” that they are indeed voluntary.

    Here’s the 2009 MCA language in question [starting on PDF Page 385 of 655] – see if you can spot any daylight for the admission of coerced statements by Khadr, once they’ve been magically transformed into “voluntary” confessions, by Executive Branch/Military Judge fiat:

    -‘Sec. 948r [of the revised USCode Title 10, Chapter 47A, Subchapter III]. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused

    ‘(a) Exclusion of Statements Obtain[ed] by Torture or Cruel, Inhuman, or Degrading Treatment– No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made. [This flat exclusion is an improvement over earlier versions of the bill.]

    ‘(b) Self-incrimination Prohibited– No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter.

    (c)Other Statements of the Accused– A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military judge finds

    ‘(1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

    (2) that–

    ‘(A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or

    (B) the statement was voluntarily given.

    ‘(d) Determination of Voluntariness– In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following:

    ‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities.

    ‘(2) The characteristics of the accused, such as military training, age, and education level.

    ‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.

    Meanwhile, as Spencer details in depth, and Carol Rosenberg has been noting…:

    But will hearings happen again without the new manual for military commissions? http://bit.ly/9lNeqX DOD said it wasn’t ready as of Friday.
    9:23 AM Apr 17th via web from Oceanfront, Miami Beach

    Pentagon trip to Khadr mega-hearing at Guantanamo starts Monday – dozens of media going – and still no Military Commission manual.
    5:25 PM Apr 23rd via UberTwitter

    …how the commissions will implement that provision of the new law was supposed to have been formalized into revised rules by January, as the legislation directed. But while Congress openly yawns at the blatant disregard by the military of that Congressional timeline for the issuance of new military commission rules, the commissions simply proceed without them.

    “Due process?” Who needs it, when our independent judiciary has been intentionally end-run by this Congress and this President to try to prevent it from enforcing such built-in, carefully-designed, liberty-protecting Constitutional limits on the federal police powers of the Executive Branch.

    On a very much-related note, don’t miss the interview Scott Horton conducted with Gary Solis, author of the just-published The Law of Armed Conflict:

    In past U.S. conflicts involving insurgent or revolutionary groups, such as the U.S.-Philippine War (1899-1902), the Vietnam War (1965-73), and the Panamanian Incursion (1989), we afforded captured enemy fighters POW-like status; although not officially POWs they were treated as POWs in virtually all respects.

    Not so in the so-called war on terrorism. Early in the conflict the last administration argued that granting prisoners POW-like status would interfere with efforts to interrogate them, thus hampering efforts to thwart future attacks. Instead, Secretary of Defense Rumsfeld directed that detainees be treated humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions. Chillingly, commanders were given discretion to decide whether and when Geneva requirements would be applied to prisoners. But a nation’s Geneva Convention obligations are not a matter of individual discretion, nor a we-will-if-you-will proposition. They are international obligations ratified by the United States Senate; they are what Article 6 of the constitution calls “the law of the land.” Our observance of our Geneva obligations is not about the enemy, but about us, as a nation. Our initial detainee policy was a deviation from past U.S. policy, and was contrary to our international obligations under the Geneva Conventions. The invocation of “military necessity” was a political smokescreen.


    War crimes cannot simply be made up, as this one was by Congress in the 2009 Military Commissions Act. Custom and historical precedent are required to give a war crime legitimacy. “Material support for terrorism” lacks any of these indicia.

    If Congress wishes to criminalize material support for terrorism under domestic criminal law, as it did in 1993, it has the power to do so, and prosecutions in domestic courts may follow. But as the U.N. War Crimes Commission says, the laws and customs of war are “rules of international law with which belligerents have customarily, or by special conventions, agreed to comply in case of war.” Although there are other definitions of “war crime,” material support of terrorism meets no element of the U.N.’s definition. In my view, prosecutions based on such a charge only add to the disrepute of American military commissions. – Gary Solis, 4/20/2010

    So what exactly is “enemy combatant” Omar Khadr – never treated as a POW, nor given an Article 5-compliant hearing to formally revoke his default-POW status, as required by “the law of the land” – charged with?

    Daring to fight back against a nation self-declared to be entitled to fight a “war” on terror unilaterally, and with impunity, because its “enemies” in that “war” are allunlawful enemy combatants” by default, and thus “war criminals” – who may or may not be prosecuted – apparently mostly for the crime of being Muslim, or foreign, or non-citizens, or unlucky civilian bystanders, or even children? Who knows, because with the blessing of a Congress filled to overflowing with members who don’t “give a shit”, there’re no independent checks and balances operating to restrain or impede the guys with the guns pointed at helpless prisoners – in our name, thousands of miles from any hostile action – or to question or rebuke their chain of command.

    The determination of whether an individual captured on the battlefield is a “lawful” or “unlawful” enemy combatant carries with it significant legal consequences (both international and domestic) relating to the treatment owed that individual upon capture and ultimate criminal liability for participating in war-related activities associated with the armed conflict. The Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW III) — signed in 1949 and entered into force in 1950 following battlefield atrocities occurring during World War II — sought to carefully define “lawful combatant” for all signatory nations.


    Additionally, lawful enemy combatants facing judicial proceedings for any of their actions in warfare that violate the law of war, or for post-capture offenses committed while they are POWs, are entitled to be tried by the same courts, and in accordance with the same procedures, that the detaining power would utilize to try members of its own armed forces (i.e., by court-martial for lawful enemy combatants held by the United States). See Arts. 84, 87 and 102, GPW III.


    The declared purpose of the C.S.R.T. process used to review the status of hundreds of foreign national detainees captured in Iraq and Afghanistan and currently held under Defense Department control at Guantanamo Bay Naval Base, Cuba — including Mr. Khadr — was solely to afford detainees “the opportunity to contest designation as an enemy combatant.” Wolfowitz memorandum at 1. The Wolfowitz memorandum never discusses addressing the issue of “lawful” or “unlawful” enemy combatant status; nor does the memorandum from the Secretary of the Navy implementing the C.S.R.T. process.25 As far as we can discern, the C.S.R.T.s were never tasked with making that determination. Instead, they conducted non-adversarial proceedings aimed at deciding, by a preponderance of the evidence, whether each detainee met the criteria for designation as an “enemy combatant” [eligible/required to be treated as a POW until fairly demonstrated otherwise, under the Geneva Conventions, a “law of the land” that continues to be wholly disregarded despite the existence of Army Regulation 190-8… – pow wow] under the definition in the Wolfowitz memorandum26 to permit continued detention at Guantanamo Bay.

    – Appellate Military Deputy Chief Judge Rolph of the United States Court of Military Commission Review, 9/24/2007, joined by Judges Francis and Holden, in their first-ever decision

    • bmaz says:

      Well, I can see all kinds of openings the government will try to drive their torture evidence truck through; and my guess is the manual has not been released ahead of time so that it could not be carved up. You just know there is going to be some serious horse manure in it……

    • harpie says:

      powwow, selise asked me to relay this message:

      if you happen to see powwow and think of it, would you pass on a msg from me that the filibuster diaries are coming as soon as fundraising, etc for the teach-in on the 28th (which is time sensitive in the extreme) is over? thanks!

  10. bobschacht says:

    Well, geez, the likker cabinet got all emptied out, and for a while this morning it was like almost everyone was sleeping in late. But now it seems like the Wheel House is collectively waking up in anticipation of Mom’s return, and trying to straighten the place up. Good to see some signs of life here!

    But thanks to bmaz for keeping the House open!

    Bob in AZ
    Now where did I put the Alka-seltzer?

      • john in sacramento says:

        Ya know my Dad used to tell me the best way to cook carp

        1st thing, catch a carp
        Then, preheat your oven to 350 degrees
        get a shingle; a claw hammer; 4 nails; and a 2 by 4
        nail the shingle to the 2 by 4 with 2 of the nails
        fillet the carp
        nail the carp to the shingle with the other 2 nails
        cook for 30 minutes
        let cool
        use the claw hammer to pry the nails from the carp and the shingle

        Throw the carp away and eat the shingle ;-)

        • dakine01 says:

          My father could clean and cook most all levels of small game and fish. The exceptions were snappin’ turtle (but he knew folks who could clean and he’d split the meat and we’d get turtle soup out of the deal) and carp

          The other exception was carp. But there was a man in our home county who had a carp fish fry every summer and I went a couple of times with Dad. It was excellent and Dad would always complain he couldn’t get the guy to give up the secret.

          • earlofhuntingdon says:

            I’ve heard one secret is to keep the carp in clean fresh water for a while to let the nastiness from their bottom-feeding pass out.

      • bobschacht says:

        They prolly slapped her upside the head before flopping back into the water. We’ll see what kind of shape she’s in when she gets back.

        Bob in AZ

  11. earlofhuntingdon says:

    Canada’s Harper seems to think that Tony Blair remains an idol to be followed, rather than one already off his perch and in the dust. A mistake Canadians may regret – not that Americans haven’t a much longer, deadlier list of mistakes.

    As for admissible “evidence” obtained through torture, that’s an oxymoron, a non sequitur anywhere in the civilized world, a world we left with the Sup.Ct. appointment of Shrub. Mr. Obama must confuse himself with Lot’s wife. He’s afraid his world – at least the useful images of what it once was – will turn into a pillar of salt if he looks back at the destruction wrought by his predecessor.

    Evidence is deemed inadmissible in court for all sorts of reasons. A dominant one is that the way it was produced or handled makes it highly unreliable. That is certainly true of torture. It is too unreliable even for a fact finder to consider, let alone be something on which a judgment could hang.

    Another major reason to exclude evidence is where the government obtained it through illegal or grossly harmful means. The law limits the government’s rights – its permitted behavior – as well as authorizes it, just as it does for citizens. The law of evidence excludes information obtained through reprehensible means in order to deter – and to punish – that behavior, which is deemed more harmful to society than the conviction on any charge of a single individual.

    Mr. Obama’s planned insistence on using evidence obtained through torture suggests that, like his Republican predecessor, he is not seeking to protect us or to enhance national security. He seeks to advance his political career by concocting convictions as if he were a two-bit, one-case-from-disbarment political prosecutor from Podunk. I just know Harvard turns out better lawyers than that. So does the Navy.

  12. Hugh says:

    Not that it is comforting in any way but Obama’s conservatism keeps shining a light on the deep divisions between progressives and Democratic liberals. For Democratic liberals the tribal loyalty to party transcends any and all conviction on the issues. As a result Obama can validate and expand Bush’s worse excesses secure in the knowledge that his left flank will suck up almost anything.

    With Iglesias, I am reminded of Bob Woodward. At the core, Woodward was a hack, an Establishment wannabe. Circumstance made him briefly into an accidental journalist, but it wasn’t in him. He just parlayed the rep into that place in the Establishment he always wanted. Iglesias looks to be following a similar trajectory.

  13. earlofhuntingdon says:

    I’m confused about your word choice. Progressive seems to have become a code word for “liberal” because the GOP machine has been allowed unchallenged by Democrats to graft onto that word a host of negative meanings.

    As I understand the terms, it is principled action that trumps tribal loyalty for liberal and progressive citizens. It is conservatives, especially those who have rebranded themselves “centrists”, who seem to prize tribal loyalty. It’s also become the de facto minimum price to pay for membership as an “insider”, to have one’s name entered on the nomenklatura.

    • bmaz says:

      That is an interesting question as to what is the real distinction between “liberal” and “progressive”. I am not sure. David Sirota says the difference lies in the willingness to use the government to restructure basic institutions, but that seems a little ephemeral.

      • earlofhuntingdon says:

        Trying to construct such distinctions, here between liberal and progressive, seems an example of how nightmarishly incompetent are the Democrats’ message controllers.

        Dems are always running away from the mangling done to their memes by talented, bent Republican counterparts. That’s an endless loop in which the Dems are always apologizing – via their publicly weak attempts to correct the misconceptions bandied about by Goopers.

        The Dems should forget elaborate phrases as slogans. Stick to the task, don’t meekly penetrate the fog; gut, don’t fillet, false claims.

      • bobschacht says:

        That is an interesting question as to what is the real distinction between “liberal” and “progressive”. I am not sure.

        OK, I’ll explain it to you. Democrats allowed Republicans to demonize “liberals” with barely a squeak of protest or defense, so that Republicans succeeded in tarnishing the “Liberal” brand beyond rescue. So what was a good Liberal to do? Why, seek another label, of course! The label “Progressive” was available, and had not (yet) become tarnished, so people who formerly would have described themselves as “liberals” seized on the label “progressive” as their self-description of choice.

        Bob in AZ

    • Hugh says:

      I consider myself progressive and am not party affiliated. Liberalism can have a very broad context, but a Democratic liberal is a peculiar political designation. For me, it means people like Krugman, Moulitsas, and Iglesias. They will support Obama and defend him because he is a Democrat and as long as he continues to throw in a little progressive rhetoric in his spiels from time to time. That his agenda and that of the Democrats are strongly corporatist and conservative scarcely impinges on them. You could say they buy into the tribal loyalty meme even more than the Blue Dogs. The Blue Dogs will, in fact, vote against the Democratic agenda. The liberals on the other hand are even more tribal in voting for it, despite its conservatism.

        • Hugh says:

          There is certainly a lot of overlap. Neoliberalism for me is however more about economic issues.

          I was thinking about the contrast between Stone and Woodward when I was writing my comment. It is all about letting the chips fall where they may, not just where they are convenient and unlikely to piss anyone off.

        • Theater403 says:

          David Harvey has a good book on Neoliberalism and you can listen to him talking about in on the youtubes.

          Basically, neoliberalism is a mask for piracy. Of course any word out of Chomsky’s mouth will tell you plenty about Power and government.

          We must forget these labels I think because they are meaningless even in our backyard–as has been noted the operatives in power simply use them as “confusion levers” and tar dissidents with the demonized label of the moment.

          Senators are part of this pirate cadre–is this true of the House or only those with seniority on committees of special note (ie, members of the inner circle)?

          Look–we cry murder and torture and wrongdoing–and we do this in public and even some journalists do the same. Nothing is effective due to the constant propaganda–the constant “framing” of the issue. Another bit of wisdom from Chomsky: allow the discussion and frame the argument so that the presumptions in favor of power are unspoken but coercive nonetheless. Then the argument seems real and substantive but it will go nowhere.

          I will not be “of” any political party. But this won’t matter if I speak/act out against power–I will be branded and led to the slaughter.

          Can whole communities make a difference? How do we rise up with fists?

  14. nusayler says:

    I beg the group’s patience for a point of information. As it stands now, does the govt. distinguish between Gitmo detainees who are incarcerated pending legal action (a trial) concerning an alleged offense as opposed to those against whom no offense can be proved BUT whom the gov’t has determined (through their Magic 8 Ball by the looks of it) to be of such potential danger their continued imprisonment is essential?

    I ask because, regarding detainees of the second type, surely there is a point where even someone who was an Al Queda big macher will have been out of the action for so long, or been surpassed by other, younger leaders, or just have grown too old and silly that they ARE NOT viable candidates for a return to the action. Indeed, I suggest there is a tipping point at which they have no value to Al Queda as free persons but tremendous value as martyrs as long as they are in prisoned.

    Another question for anyone thinking in these terms: Will Al Queda ever evolve a “Sinn Fein” political arm?

    • powwow says:

      As it stands now, does the govt. distinguish between Gitmo detainees who are incarcerated pending legal action (a trial) concerning an alleged offense as opposed to those against whom no offense can be proved BUT whom the gov’t has determined (through their Magic 8 Ball by the looks of it) to be of such potential danger their continued imprisonment is essential?

      The Obama administration is making noises about distinguishing between these two groups, as part of its plans for more-formally implementing indefinite non-POW detention at Presidential whim (assisted by the war-besotted Lindsey Graham), endorsed perhaps by Congressional legislation (the Judicial Branch need not apply).

      Standing in their way: The independent federal district judges slowly working their way through the 180 or so pending habeas appeals from those detainees (and, hopefully, the D.C. Circuit at some point, if not the Supreme Court). Cheering on the undermining of our independent federal judiciary, of course, are most Members of Congress, who are otherwise engaged in the engrossing business of “defending” Israel from the Muslim Hordes living hand-to-mouth in its shadow.

      But remember that there are a mere handful or two of the 180 or so remaining Guantanamo prisoners who have even been charged by the Military Commission Convening Authority, in addition to the 9/11 Five. Which means that almost everyone in Guantanamo would presumably fall into your second category if not released.

      Something called an “Administrative Review Board” was deployed during the Bush administration for a time, supposedly to review the level of threat posed by the detainees, on an annual basis, which may (or may not) explain why hundreds of them were released uncharged before Obama took office – despite the ongoing “hostilities” of the armed conflict in question. I think I’ve heard Jeh Johnson – Defense Department General Counsel – making noises in Congressional testimony about re-implementing some form of the ARBs at some point.

      But all of this is bound up now in the future of the prison site itself, as well as with the ongoing habeas rulings and appeals – see Lyle Denniston’s report about the latest egregious reasoning of rogue D.C. Circuit Court of Appeals Senior Judge A. Raymond Randolph on that front – political jockeying in Congress, and probably also with the pending decision or decisions by the Court of Military Commission Review on the appeals (argued in January) of the Hamdan and Al-Bahlul convictions [the two – of three total – military commission verdicts reached without a plea deal].

  15. Hugh says:

    The problem with using liberal in the context of Democrats is that so few of them are liberal. They certainly don’t act as liberals. The liberal Obama is, in fact, a conservative. Again the important distinction here is between officeholders (and their associated elites) and the rank and file.

    • earlofhuntingdon says:

      The conflict between insiders and outsiders I have no trouble with. Media figures have given us plenty of examples: Woodward, Russert, David Gregory, multi-millionaire players as seemingly powerful as those they cover, vs. Izzy Stone-like journalists who still practice journalism.

    • jm51 says:

      Hugh: This entire torture regime with its accompanying pathetic military Commissions/tribunals, indefinite detention without charges and presidential assassination lists is not a liberal or conservative issue. Those two words imply legitimate and lawful differences in approaches to common problems. These acts are a matter of criminal activity, in fact, the most heinous crimes defined by civilized societies. There is nothing legitimate about them. The current administration (obama) is eqully culpable with the prior one (bushies). obama talks about looking forward and not back. All obama has to look forward to is that some day (10,20,maybe 30 years after leaving office)having a war crimes tribunal knock on his door and take away to be tried just like these 80-90 year old nazi’s.

  16. Hugh says:

    This is a little material on the Khadr case from my old Bush scandals list. The links are back at the list.

    On September 24, 2007 in the Khadr case, a military appeals court found that on hearing more evidence a military judge had the power to determine that an alien enemy combatant was also an “unlawful” one. If upheld, this could clear the way for trials under the MCA. On November 8, 2007, the government informed Khadr’s defense that it had an exculpatory eyewitness which it had known about from the beginning but only chose to tell the defense about several years into Khadr’s detention. On May 29, 2008, the Pentagon announced that the judge in Khadr’s case Army Colonel Peter Brownback had been removed. No reason was given but there was a push on to start trials before the November 2008 elections and Brownback had threatened to suspend proceedings because the prosecution had been stalling about sharing records with the defense concerning Khadr’s detention. On June 8, 2008, it came out that Khadr’s attorney Lieutenant Commander Bill Kuebler had come across a military directive which ordered interrogators to destroy their handwritten notes of interrogations, i.e. destroy evidence, obstruct justice. The notes are important because they give a blow by blow account of interrogations and are far more complete than the sanitized summaries put together later based on them. They could, as the defense contends, show that Khadr’s various confessions were the product of torture. And their destruction effectively poisons the well in any prosecution of Khadr. On June 9, 2008, Kuebler was to submit an affidavit on this to SCOTUS in the Boumediene case.

  17. harpie says:

    Did Iglesias mis-speak?

    We want to make sure that those terrorists that did commit acts will be brought to justice — and those that did not will be released.

    It sounds like it could mean “those terrorists that did not commit acts…”

  18. alinaustex says:

    Could it be we should wait and see what JAG Iglesias actually does withe the Military Commission Trials before we flame him as you have done . Perhaps the innocent detainees will be set free by the Military Commission once they are convened . What evidence do you have for dressing down JAG Iglesias has you have done in this column ?
    I for one still have faith that Team Obama is doing its level best to wend it way through the many disasters that Lil’Boy Bush and the Big Dick left strewn across the American landscape and judicial system .
    I will look forward to Spencer’s reporting from Gitmo -has he will be giving us real time data regarding the JAG “Iglesias Show ” trials..
    (OT by the way bmaz here that dog not barking? Thats the Durham grand jury still hard at work …)

    • bmaz says:

      The only evidence of Iglesias doing anything is the Daily Variety mett and greets he has done for the press; if you have evidence of more substantive work, let me know. And no, I have no need to wait and see on this military commission horseshit; they are proceeding without even have the guideline manual, mandated by law to be published and in place long ago, ready and available as they start trial procedure proceedings on Khadr. If this is “Team Obama’s” level best it is fucking pathetic. If you want more on this, check out Ackerman’s reporting or Marcy’s new post.

      John Durham is not doing jack shit that I see except running out the clock so that whatever low and mid-level people he gets are all that is possible because the statute of limitations has run on anybody higher up. I believe the highest Durham will indict is Jose Rodriquez (if he indeed does even that) and Durham is going to jerk off so long in doing so that he cannot roll Rodriquez to get the people who count. I think it is a despicable and depressing effort; Rodriquez could have been indicted by a grand jury in a heartbeat the day Bullshit Durham was handed the case well over two years ago.

  19. alinaustex says:

    [email protected]
    We can agree to disagree – re Iglesias & Durham .
    But pls help us non lawyers -didn’t the Senate pass an amendment to the DOJ policy guidelines that extended the SOL on cetain war crimes ie torture . And if I recall correctly that some of the commentaters here whose opinion I respect most -( especially bmaz yours ) were not sure what to make of this new addendum to the DOJ and its handling of war crimes . It seems like this was Senator Whitehouses doing -with Senator Cogburn as a co-sponsor ? Do you recall that piece of legislation bmaz ? And if so how might pertain to the SOL’s and Durham ?
    And for the purposes of our friendly wager is Rodridquez in your mind a Principal ?

Comments are closed.