You Have a Right to Speedy Trial … Unless They Need to Torture You First
As we’ve discussed some in comments, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s challenge to his trial for the African embassy bombings on speedy trial grounds. Kaplan rejected Ghailani’s argument that, since the government had held him for five years before charging him, he had been denied the right to a speedy trial. Mostly, Kaplan ruled that, since the government got no advantage from waiting, the delay did not infringe on Ghailani’s rights.
This has been read to suggest that civilian judges would reject a similar challenge on the part of Khalid Sheikh Mohammed, meaning one possible barrier to a civilian trial for him, too, has been eliminated. That’s probably true. But it bears note that Kaplan did find government excuses for some of the delays in charging Ghailani unpersuasive.
In sum, the only reason for the delay of this prosecution during the period September 2006 through late February or early March 2007 was the fact that the executive branch decided to hold Ghailani at Guantanamo and not to proceed with the prosecution. The government’s justification for the roughtly one-year delay from February or March 2007 until March 28, 2008 is weak. The time during which the military commission proceedings were pending, March 28, 2008 until January 2009, also weighs against the government because the government and not the defendant was responsible for it. The same is true with respect to the interval from the suspension of the military commission prosecution in January 2009 until Ghailani eventually was produced in this Court.
Now, I think the argument that Kaplan used here will still largely hold sway. But some future judge may well look more skeptically on the current delay in charging KSM. After all, this delay — to let the political winds blow over until such time as KSM can be charged in a civilian court (if that’s what is happening) — is something the government is doing to gain advantages over KSM. Eric Holder has explained unambiguously that one reason he thinks we stand a better chance of trying KSM in civilian courts is to be able to impose the death penalty, and there’s actually a greater risk that KSM’s torture might lead a military commission to compensate for the treatment. The Attorney General, that is, has repeatedly said he wants to try KSM in civilian court because it holds certain advantages over military commissions for the government; and the only possible way to move forward in civlian courts is to wait until either Rahm and Lindsey say it’s okay or until the election passes. I don’t think it’ll happen, but there is an argument to be made that the current delay in charging KSM is designed to gain an advantage and therefore could be judged to violate his right to a speedy trial.
But that’s not what I find most interesting about this ruling. It’s the way Kaplan decides that the two years Ghailani was held — and, Ghailani says, abused — at a black site didn’t violate his right to a speedy trial. Here’s the argument:
The CIA interrogated Ghailani for the first two years in the reasonable belief that Ghailani had important intelligence information. While some of the methods it widely is thought to have used have been questioned and, to whatever extent they actually were used, might give rise to civil claims or even criminal charges, 139 no one denies that the agency’s purpose was to protect the United States from attack.
“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” While the Speedy Trial Clause conceivably might have been violated if a prosecution were delayed for the purpose of extended use of appalling or unlawful methods of interrogation even for important national security reasons, that is not the case. There was no prolonged delay here for any such purpose. The two year delay attributable to the CIA interrogation served a valid purpose. The balance of considerations with respect to that period, especially in the light of the lack of substantial prejudice to Ghailani’s Speedy Trial Clause-protected interests, tips heavily in favor of the government.
139 But see Detainee Treatment Act of 2005, 42 USC 2000dd-1(a) (establishing qualified defense for government personnel charged with offenses or liability in connection with officially authorized operational practices “that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States”).
This is a lovely example of the muddlespeak one has to resort to to make an argument that is not entirely persuasive. “While some of the methods it widely is thought to have used have been questioned”? That construction is all the more ridiculous given that a few of the documents Kaplan cites on torture–like the Bradbury CAT memo, the CIA’s Combined Techniques document, and a version of the OMS guidelines are publicly available. And how does Kaplan decide that Ghailani’s trial hasn’t been delayed just for torture? Because John McCain subsequently declared it retroactively legal?
In fact, Kaplan submitted a Supplement we don’t get to see analyzing Ghailani’s treatment in detail (Ghailani, interestingly, submitted affidavits describing both the treatment he received while still in Pakistani custody and what happened when he was moved to the CIA black site, though the opinion repeatedly stops short of naming Pakistan in spite of the fact that the Bush Administration was leaking boastfully about their successes in Pakistan during the pre-2004 election period when Ghailani was captured). The Supplement, among other things, notes that Ghailani was tortured for a period that “was not of sufficient length to be material to this motion.” As to why they kept him at the black site for two full years, then, Ghailani argued that his intelligence value “quickly dissipated,” while the government argued that he continued to have intelligence value.
So Kaplan reviewed both the government’s version and Ghailani’s version of the abuse he was subject to, and apparently decided it was justified even if it might have been against the law had McCain not retroactively declared it legal.
What’s interesting, though, are the documents he relied on, particularly given the way they map onto the requests CIA was making in the time period after they captured Ghailani.
First, he relies on an undated version of the CIA’s OMS Guidelines on Detainee Interrogations. It differs from the OMS Guidelines dated September 4, 2003 that was included with the CIA IG Report (itself dated May 7, 2004, just two and a half months before Ghailani was captured on July 25, 2004) in that it doesn’t include water dousing as a “standard measure.” And it differs from the OMS Guidelines produced sometime before January 15, 2005, in that it puts the limit for “standard” sleep deprivation at 72 rather than 48 hours, and it doesn’t include water dousing or tossing and walling as enhanced techniques.
Perhaps that means there was a different version of OMS Guidelines in place from May 7, 2004 to January 2005 that were the operative guidelines when Ghailani was abused in August or September 2004. That would be interesting not least because CIA formally got water dousing–the technique preset on both other OMS guidelines but not on the list Kaplan saw–approved on August 26, 2004. That approval may well have been approved for use with Hassan Ghul, but it was included in all the subsequent approvals.
And then, for description of the techniques, Kaplan cites the Bradbury memo from May 30, 2005. While it’s true that the Bradbury memos all appear to have been retroactive (at least one of them names Ghul personally), they obviously weren’t in effect during Ghailani’s abuse. Further, it is possible the letters from the period included one specific to Ghailani, but if so, why not provide the list actually approved for Ghailani? Finally, there are some differences between the descriptions that appear in the Bradbury memos, those used in the July-August approval letters in 2004 (which should have been what authorized Ghailani’s treatment), and the Bybee Memo.
Did Kaplan ever see a contemporaneous document pertaining to Ghailani’s abuse, rather than the retroactive descriptions? And if so, why not?
I guess it doesn’t matter anyway. Kaplan has basically concluded that if the government can persuasively argue that government believed the torture necessary at the time, then they can torture a detainee as long as he still has intelligence value without infringing on the detainee’s right to a speedy trial.
Sure would be nice to see the part of the opinion that secretly deems the acts committed upon Ghailani to not be torture (because we do not torture) and says they are hunky dory. Also kind of puts the lie to the thought that our torture is only for the exigent ticking bomb scenario.
Very heartwarming that we not only torture, but have now ingrained into Article III criminal court law and procedure both acceptance of it and the necessity to keep it all secret. The shield of criminality for the most immoral acts imaginable of a nation is now complete. And with barely a whimper. This was always the down side to trying terror cases in regular courts.
I’m not sure he does say that it isn’t torture, which is what I take from this sentence:
That is why I would like to see the classified portion. I do not think you can find that it is torture and reach the ruling in the manner Kaplan did. And in this context, I would think anything short of a declaration that the conduct was torture is an implicit finding that it was not.
MaryCh @ 3 – Speedy trial, while recognized by the 6th Amendment, has never been a clear cut concept, nor seen as immutable like Habeas. There have been four general factors length of delay, basis for delay, prejudice to defendant and the defendant’s efforts to protect his right. The interpretation of these factors has constantly evolved and has always been twisted to give the benefit of the doubt in favor of prosecution. Many states actually have better rules and constraints than the federal judicial system.
He allows the intellectual possibility that the actions might be torture and, hence, criminal, but dismisses it as something he need not consider in evaluating the defendant’s constitutional rights.
I’d have to agree with bmaz that it is a de facto acceptance of behavior that might be torture, but for that the US did it, that the US doesn’t torture, and that it claims – which the court must accept, unexamined, at face value – to have had at least one reason why it was a good idea to do whatever they did. Not many constitutional rights left after that dismissal of the issues.
What he’s really done is to take the “good faith” argument that was not made in the Bybee or Yoo memos, but instead is the one Obama and politicians have sold, and given it a legal footing that it holds NOWHERE IN LAW! Even Yoo’s and Bybee’s defenders made it very clear that the memos were not making the conclusion that Kaplan now adopts as some kind of “found it under a rock” law.
So damn many really bad decisions in the last few days, you can’t hardly process them all and not need blood pressure meds.
That is how it strikes me. Kaplan seems to have adopted the position that the govt says it was all necesssary to protect the country and therefore a proper purpose and not torture per se.
You and me – The Striken.
Sounds like a cultish follow up to The Left Behind.
Ah, this is when it is time to turn the other cheek …
(Forgive me, Mary, but the hand-baskets are “ready” …)
DW
The “It can’t be torture if the US claims it had a reason to do it,” rationale is a warmed over version of Nixon and Bush’s vacuous argument that “if the president does it, it can’t be illegal”, itself a resurrection – on Bastille Day, no less – of the “L’etat, c’est moi” form of governance that so bothered the French.
Great, just great.
USA, #1 in evolving torture protocols to learn to humanly torture.
And if a few die tough shit , right judge.
I used to think the right to a speedy trial, like its cousin habeas corpus, was simple. The last 9 years have been such an education – my pocket copy of the Constitution (courtesy of The Cato Institute) needs a pocket part addition, maybe every year.
Not to go OT but Jim White has a diary up on the BOP and links to past posts by bmaz. It’s a good diary.
EW thanks for the post. I do not trust Kaplan.
“Speedy” doesn’t meet the criteria laid down by the Supremos, does it?
Another re-writing of the Consitution, post 9-11?
Kaplan’s ruled a little torture doesn’t violate due process either.
You have to picture Jon Burge sitting there wondering where this gift in black robes was when he was being tried. At least he’s got a witness now, to “no one” denying that he was just trying to keep the city safe.
You can call me “no one”:
The agency had many purposes for its torture (vengeance, satisfying its political masters, entertainment), but protecting the United States was never one of them.
Oh, yeah, that.
One of the reasons I’d like to see the classified filings is because there’s reason to believe the 2004 attack rumors were more about W’s second term than real threat. And you gotta torture people to get a good pre-election scare.2
Maybe we’re related? I seem to answer to “no one” as well. What utter bull.
I can’t put up much of a comment, bc I’m so angry on so many fronts right now.
Mr. Cheney certainly acted as if revenge and protecting his individiual behind from political, legal or physical attack were the alpha and omega of his interests. Protecting the United States, a la the Plame debacle, doesn’t seem to have been high on his agenda.
That is the best understatement I’ve heard in years.
Cheney should be incacerated at Shutter Island
One of the saddest things about our present sad situation is that the Prime Directive has changed. For centuries, it was enshrined in the oath of office of every Federal Official: To protect and defend the Constitution of the United States. This is all forgotten now, even by recent oath-takers, because it has been replaced by “protect and defend the United States.” This has happened because it seems so logical, and irrefutable. But our founding fathers knew better. They knew exactly what they were doing in this regard.
We have become very careless about what it is that we are protecting and defending.
Bob in AZ
Criminal trials are not soccer games. “Play on” when no advantage ensues from a minor infraction is not one of the rulings available to referees, known as judges, when the infraction in question is of constitutional importance.
The court’s ruling seems vacuous. What level of “advantage” is necessary to be of constitutional concern: an outright victory based on evidence obtained through torture or the political benefit of keeping an uncharged victim prisoner for five years until the government decides what it wants to do? Imagine the mischief a judge in Texas or Alabama could do with the standard this court adopts. (That it will leak into non-“war” scenarios – like domestic surveillance and the use of battlefield weapons such as drones and sonic cannon – seems a foregone conclusion.)
If the defendant is subject to US criminal jurisidction, he has the benefit of US constitutional protections, as do its citizens normally (well, before Bush and ‘Bama). That’s why rulings like this that gut constitutional protections should have everyone up in arms (not armaments).
Would someone cite the law that says criminal behavior by the government – torture, aiding and abetting torture, cruel and degrading treatment – isn’t a crime when a motive, if not the principal motive, is to protect an ambitious politician’s description of American security? Besides, no government admits what it does is torture or that it does it for sadistic reasons or revenge. If all it takes is the government to assert it acted with a pure heart, without credible proof, we’re lost.
That is what all their cynical excuses boil down to, the claims of national security or damage to international relations or prerogative too. The courts have to make the connection: none of these excuses is valid if it is being used as a way to cover up a crime.
How long does torture need to be undergone for it to be of sufficient interest to an American federal judge? Malcolm Nance could demonstrate its brutality in about 60 seconds.
With no small irony, Kaplan is arguing that CIA torture is not of sufficient interest to him because its perpetrators claimed they were following orders.
Perhaps he should read a little legal history, though I gather from recent research that more facts do not change a partisan’s position; they strengthen its opposition to them in an effort to ignore inconvenient reality. Nevertheless, I suggest he start with the collected works of Robert H. Jackson. He might try this excerpt from a speech (available here) Jackson made while serving on the US Supreme Court during the Cold War and the era of Joe McCarthy (emphases mine):
Kaplan is arguing that CIA torture is not of sufficient interest to him because its perpetrators claimed they were following orders
Sure – and Kaplan’s just ‘following the law’ but giving them the amnesty and secrecy outs. I think he could easily cite to the judges with the Reich Ministry of Justice, who were just following the laws too.
*sigh*
I look at this quote from Nuremberg sentencing:
and realize how much we’ve given up.
The things Kagan were most excited and animated about in her hearings were her successful role in the Obamaco schemes for deprivation of habeas and her ability to attack lawyers for defending unpopular clients and even work up a sales pitch that they should be jailed.
That’s what gets a Sup Ct nomination these days, and one that is attacked as being “too liberal” at that.
Any civilized judicial system.
We had it taken by Bush and then gave up our rights to get it back under Obama.
Obama solved all that – you just tell people who can’t vote for you that you’re going to “look forward” and then go convict the torturers of people who can vote for you. Then leave office before the consequences show up, and finger steeple contemplatively over how “serious” everything is in the meantime.
You anticipate “history” all-too-devastatingly well, Mary.
Obumble is merely the heir to a long (dare one say rich?), tradition, that will doubtless serve several more “leaders” equally well before its “day” is done.
Obumble will also graciously award himself an “A” as one of the world’s foremost humanists, a virtue which, by his own admission, is exceeded only by his abject humility, and respect for tradition.
Truly, we are blessed to have such astute visionaries as Obumble amongst us, think how boring life would be, uneventful even, without the political class?
Soon enough, Obumble will be able to comfortably rest on his fat assets and plumped-up (the Brits might say, “sexed-up” …) laurels, joining other special souls … Kissinger, “Poppy” Bush, and William Jefferson Clinton among them, the brotherhood (and sisterhood, as well) of the unrepentant, the unaccountable, the chosen …
DW
Since Newt and DeLay, Atwater and Rove, and Cheney and Bush, Republicans gave up on, then demonized the idea that one need come to terms with one’s legitimate political opponents, let alone with one’s long-term battlefield enemies. Political compromise or martial peace treaties be hanged.
That nicely does away with Jackson’s observation that no matter how many “enemies” you kill, no matter how much Old Testament fire, brimstone, rape and pillage you inflict, there will always be someone who disagrees with you with whom you will have to come to terms.
Mr. Obama, in control of the White House and both houses of Congress, continues to act as if he’s the outsider with whom the insiders can choose to ignore or come to terms with. I don’t suppose telling him that the tables have turned (and may turn again) will do any good.
Jackson was such a wise man. Too bad that there are not more like him on the Supreme Court.
Bob in AZ
Sadly, I am not sure there are any like him on the current Supreme Court.
I think the answer to that is a resounding “No”, there are no jurists like Jackson or Marshall on today’s Supreme Court. Neither would even be considered for it today.
Jackson was too rule-of-lawish and humane; imagine that in a former Attorney General and Nuremberg chief prosecutor. Marshall was too, and too much persuaded by the idea that the application of the Constitution ought to match its aspirations, regardless of a citizen’s race, color, creed, or economic might. No need to worry about such “extremism” on this court, even among its “liberal” wing.
Lewis Kaplan was appointed to the bench by Bill Clinton in 1994. He is a 1969 graduate of Harvard Law School.
fwiw in giving more context, the charges Ghailani is facing tie to the embassy bombings, not 9/11. Kaplan is a Clinton appointee to the bench. It’s worth noting the public reason al-Qaeda gave for the embassy bombings (not, perhaps, the truth, but something that Zawahiri put out nonetheless).
During the Clinton admin, Scheuer with CIA went to Mary Jo White (mentor of Fitzgerald, Comey and others from her slot as USA for SDNY and well connected, well liked, high powered atty) for help cooking up a plan to try to get al-Qaeda members locked up or killed off, especially ones who had not done anything to, or in, the US.
They came up with plans to use Egypt, get it to issue some kind of process against the guys they didn’t like (many of whom were tied to Zawahiri and Egyptian) and then have the CIA kidnap them from wherever and dump them off in Egypt, for the Egyptians to take care of – and included in all that apparently was some ok-s for the CIA to engage in pretty nasty activity itself “at sea.”
Keep in mind the US War Crimes Act was passed in 1996. In 1998, the CIA hooks onto some Egyptians who are in Albania and maybe working for Zawahiri’s brother. After some pressure Egypt issues a warrant for one, Attiya. Then the CIA mobilizes, goes into Albania and working with Albanian “security forces” they kill a guy, then round up Attiya and four others and kidnap them, destination Egypt.
When the “Albanian cell” is dumped off, they are tortured and two who were senteced – in absentia – to death are hanged. The US media pays no attention, but the treatment of the “Albanian returnees” does get play in Egypt and radicalizes many against the US.
Zawahiri then issues statements that the US actions have been “heard” and will be answered in kind, with the Embassy bombings taking place within a few days after he releases that message.
So that is the context of the Embassy bombings – something that hasn’t really been spelled out in the former trials, but one very real world example of the kinds of things we were reaping, even in the Clinton years, from out opt-in to torture and lawlessness.
God rest the souls of the victims of those bombings – but we don’t get rest for ours until we at least put the whole picture out there.
All of which makes Hillary’s “Civil Society” speech
http://www.state.gov/secretary/rm/2010/07/143952.htm
pretty damn funny, in a not-so-funny kind of way.
Yeah- first her husband relies on Egypt to torture some people to death, then she wants to show up and complain about cancelled conferences. The Egyptians must think she’s an ingrate. At least, until they look at how the admin she is working in now advocates not just kidnapping people to send to Egypt on a cooked up warrant, butt instead sending assassination teams into a dozen or so sovereign countries.
Bc what puts an objection to cancelled conferences in better perspective than a few drone attacks bombing civilians followed up with Spec Ops guys cutting their bullets out of the warm and dead bodies of pregnant women?
OT but related, and oy! Amazing stuff being revealed in declassified docs in UK High Court proceedings.
And they’ve only just begun.
For EW in particular:
I always wondered how Cameron, et al., would succeed in shutting up the courts via the work of a semi-secret-public commission if one of its ground rules was that current civil and criminal actions must first be concluded. The only way to square that circle would be to spike those proceedings; mediation was the obvious tool to do that.
I don’t think it comes across quite loudly enough how generally conservative, establishmentarian and highly-respected UK high court judges are. For them to be almost vociferous in promoting the rule of law in this manner suggests, as a body, that they are visibly angry. That speaks volumes, not only about what has already come to light, but about what they know about or fear that hasn’t yet come to light.
Consider that, then consider that the UK under Blair and his successors is still playing second fiddle to America’s lead violin. Obama must be hiding one helluva mess of criminality and corruption with his
Look Back in AngerLook Forward, Not Back, accepting, gradualist schtick.Yes, I think those judges started getting angry about two years ago, when they first weighed in on Binyam Mohamed’s case (while he was still at GTMO), and they have been getting drier and drier in their comments to the government(s) ever since. I love them.
This also matters to us. We’re watching doc suppression here too, and not even in the worst of our complicity cases. I’m sure it’s happening for the same reasons.
There’s also the point that individual legal actions involve specific claims by individuals that require resolution, whereas a government commission or committe of inquiry has broader, vaguer goals and always takes place with far less immediacy and publicity.
Who wants to bet when Cameron will give up his indirect approach and resort to trans-Atlantic rhetorical flourishes such as “Glance Ahead, Give Up the Past”.
lol. eoh, before we let you out of here at night, I think EW should count the spoons, as they say. (Well, Ian Richardson said that in Tinker Tailor.)
Smiley when you say that.
(I liked Tinker, Tailor more than the better known sequel Smiley’s People, but both were excellent, le Carre and Guinness at their best. It will be interesting to see if Gary Oldman can best Alec Guinness as George S. in the planned 2012 remake.)
Not my last comment, I’m about as reticent in my opinions as bmaz, I would say this story from the Guardian exemplifies what EW (and FDL) already does well. Nominally about complaining well rather than whinging often, it’s about how to be a guardian gadfly by pestering the right horse, the one taking the buggy off the cliff, not the one neying too loudly after midnight. In recognition of EW’s most often-quoted line, I’ll call this the money
shotquote (emphasis mine):George Smiley (Alec Guinness) is the best. Just watched the mini series a few months ago.
Now, I’m hooked on The Adventures of Sherlock Holmes with Jeremy Brett
OT, but I echo the sentiment that Brett, in the better episodes (there are several that should never have been made), is the definitive Sherlock Holmes, as David Suchet, with a few liberties being taken with his eccentricities, has become the definitive Poirot.
Here is an example, also in the Guardian, of the Cameron government using “budgetary constraints” as a stick that allows it to remake society. In that example, it is by disallowing budgets and training for legal aid and other lawyers, in a move that shifts rights or the ability to enforce them away from the have nots, which inevitably favors the haves. The image of a new, Conservative England is coming into focus, and it has an American patina.
It’s ironic that the home of the Magna Carta, Bloody Sunday Inquiry, Chilcot Iraq Inquiry, etal… Still has yet to hold anybody accountable for their digressions…!
Hey you have you heard “move on, turn the page, next chapter, don’t be about retributions, witch hunts, vengeance” Get over it you commie pinko sympathizers
Good one from Greenwald on whistleblowers, the truth, national security, executive embarrassment, etc.
also: via Huffpo – Dick Cheney In Intensive Care After Major Heart Surgery
What is it they say about saying something nice?
Well, it’s not “What goes around, comes around.”
oh, i had mrs. rabbit’s wise words well in mind when i offered up the cheney update without comment.
Heart?
Assumes facts not in evidence. i.e. a heart
It may be of interest that the new device Cheney is having implanted does not require a pulse– in fact, the heart’s own valves are left permanently open. So, Cheney now has no pulse. Does this put him in the category of zombie?
I’m not sure how this device handles systole and diastole– the circulatory system has two circuits: One to the lungs, the other to the rest of the body. First one, then the other. How does it work with only one continuous blood stream?
Bob in AZ
@28 – if you haven’t seen hcgorman’s story in the other thread, it’s worth it.
@27 – I used to be one of Dionne Warwick’s psychic friends. ;)
EW – I almost never quibble over titles, but I think this one is wrong. Even Kaplan doesn’t pretend that there was a “need.” I think it’s more a matter of, “Unless They Want To Torture You First”
No one will have to show any “need” for the torture in a case about the embassy bombings and even Kaplan rests not on there being any need for the torture, but rather on his thinking that the torture was done bc some guy somewhere thought maybe they could get something that they didn’t get.
I guess to give it a different context, if they had someone like Kaplan who was willing to rule in favor of torture without being threatened or subdued, but they did it anyway, you’d need to change the headline from, “You Have A Right To A Speedy Trial . . . Unless They Need To Torture Your Judge First” to “You Have A Right To A Speedy Trial . . . Unless They Want To Torture Your Judge First”
In the end, though, I guess I’m quibbling – want or need, judge or defendant, it all seems to be able to be placed in the inconsequential category by guys like Randolph and Kaplan.
Who could have imagined that the notion of “planned obsolescence” applies to the Constitution?
Brooks Stevens coined the term and Vance Packard jumped on it, terming it “…organized waste”.
Yet neither could have envisioned its supremely pragmatic “usefulness” and final metastization.
DW
Pettiness and religious retribution are not uniquely American or Christian. The cited article is the obituary of an Egyptian professor of Islamic studies, Nasr Hamed Abu Zaid. He and his wife, a Sorbonne-educated professor of French literature, chose temporary exile in Holland after their intellectual and religious opponents resurrected an 1100 year-old law that imposed on them an unwanted divorce. The divorce was upheld on appeal.
What would Failin’ Palin and America’s religious extremists do to their political opponents if they could take them to court and divorce them against their will or take other legal actions without their consent, claiming that they were upholding the law and their religion? The former Mrs. Clinton or Mrs. Barack Obama?
My point, though, is the quote of the professor’s humanistic description of his wife and partner shortly after their move to Utrecht. I imagine it describes the partnerships, at least the aspirations, of many who write for and read FDL; it’s an important observation in times of such long-term economic distress:
While I was reading the Ghailani ruling last night, I stumbled across something I found most interesting.
I noticed that Judge Kaplan referred to something called the “Newell declaration” from footnote 23 on page 10.
As footnote 23 describes it, the “Newell declaration” describes “purported public knowledge of covert CIA detention and interrogation program.”
Judge Kaplan’s ruling based his understanding of “a covert CIA program to detain and interrogate abroad certain individuals” on this “Newell declaration”.
I wasn’t familiar with this “Newell declaration”, so I googled around to see if I could find it.
I managed to located it in a August 2008 Khalid Sheikh Mohammed defense motion (153 page PDF) over at the ACLU.
The actual “Newell declaration” is Appendix I of this KSM motion and begins on page 118.
The “Newell declaration” is a 10 page declaration by Katherine Stone Newell who identifies herself thusly:
In following the linkage between Judge Kaplan’s ruling and Katherine Newell’s declaration, I bumped into this “interesting” observation by Katherine Newell on pages 124-125:
(My Bold)
The document that substantiates Katherine Newell’s observation is listed in footnote 30 from the ACLU as the “January 28, 2003 Memorandum from CIA Director George Tenet (redacted)” (4 page PDF).
The operative sentence from that document is as follows:
(My Bold)
I think Katherine Hewell’s observation is spot on! More torturous techniques were planned by Tenet and company, and perhaps even used, than just the “Enhanced Techniques” already publicly identified.
OT – A 4 page article about Thomas Drake, the NSA whistleblower, with lots more details in today’s WaPo that folks might want to read:
Former NSA executive Thomas A. Drake may pay high price for media leak
Here’s how that works (we can call it the Holder-Obama doctrine, or Ho for short, Ho Ho for emphasis).
If an executive branch employee engages in secret torture and torture cover ups, “no one denies” that his purpose was to protect the United States. If an executive branch employee judiciously leaks information relating to fraud and abuse after first pursuing all open internal avenues – that sucker needs to be fried!
After all, we can see how much our nation was helped by torture, and harmed by revelations of the Evil Elmer Fudd padding programs and engaging in crimes against the taxpayers – on the taxpayers’ dime(s).
Civil disobedience always carries a price; I’m afraid Mr. Obama, though, like Mr. Bush, intends the price to be paid by conscientious citizen-whistleblowers, to be high indeed. Can’t let the us, the public, know about the alleged high crimes and misdemeanors of our betters; being an insider would no longer be so insidiously profitable and free of accountability.
If the government didn’t gain a tactical advantage by waiting, which is absurd on it face, was the defendant disadvantaged by being forcibly subjected to torture and imprisonment without charge for five interminable years?
Screw that judge. He’s an asshole!
Your point is similar to the one that struck me over and over on the due process front – how does the torture victim who sees his torturers not only free, but feted by the courts and is faced with returning to their custody over and over and over – how does that guy have competency to participate in their defense?
I still like putting the other parts of the justice system into Kaplan’s equation and seeing how he thinks it sounds – your trial is being delayed while your [prosecutor/judge/witnesses/lawyer] are being tortured.
And, to tie to the first part as well, how does a torture victim who knows their family members are out there, always avaiable to the same executive branch torturers who received honors and promotions for their torture to date – how do they participate?
Your trial is being delayed while your child is tortured. Unless, of course, you’d like to plead?
OTOH, this is something that we hit on a long long time ago. The groundwork has been being laid over a decade now, by all parts and parcels of the dutiful DOJ lawyers, to have the courts shrug off torture and executive branch misconduct. And it’s the guys who too often get handed the hero titles who are the most to blame – the Bellingers and Comeys and Goldsmiths – bc they put the acceptable face on it all. They have no shame and find no voice to condem the contemptible or assume responsiblity for where their leadership took the nation. With their knowledge and inaction.
Well, see, this is what I was alluding to @6 above to MaryCh. The relief for speedy trial violation really is in the form of a motion to dismiss, and the presumption has always run in favor of the prosecutor and ability to continue the prosecution. In order to even get close to relief, the defendant must show, in addition to the unreasonable delay, that there was tactical advantage gained by the prosecution/actual prejudice to the defendant. Theoretical prosecutorial gain/defense prejudice is not sufficient. Generally, sufficient proof has required a showing of witnesses no longer available and that their testimony was exculpatory and/or that evidence had been spoiled or lost and that it was exculpatory. Needless to say, this is a very hard nut to crack; it simply does not happen very often. I have won a couple of these, but it was long ago and far away and was in state courts where I had the ability to also go under state law and constitutional provisions, which added quite a bit to the effort in those cases. It simply is almost unheard of these days in Federal court.
The prosecutor “wins”, avoids dismissal of his/her case, even if s/he is party to the defendant being tortured – per Kaplan, that’s an issue for an entirely separate hearing or case – and if the government has kept the defendant locked up for years while it forum shops? ‘Tis a bit hard to grasp.
Yeah, well, the gig was pretty much up on that when Kaplan found no usable psychiatric harm from the torture. That was the one real element of prejudice Ghailani had. Quite frankly, and this sucks big ones, but with all the classification and secrecy on the part of the government, I doubt Ghailani even has a firm grasp on all the other elements he has lost. He and his speedy trial argument are in a bit of a Catch-22 here.
U. S., Canada unveil joint border-security plan
LINK.
Well, at least they don’t have drones. Yet.
Beijing starts gating, locking lower-income migrant villages
LINK.
Remember just a few years back, as the torture story was first coming out, all the references to this widespread belief at DOJ that they’d have to have a place like GITMO and military commissions, bc after what had been done to the detainees, “how could you ever try them?”
Think how quickly people like Comey and Obama and Ashcroft and Goldsmith and Mukasey and Filip and Bradbury and Chertoff and Gonzales etc. have transformed this country, They started with the “bothersome” conviction that they couldn’t try people after kidnapping them into secret torture chambers for years.
Then they transformed the nation to where Comey and Goldsmith were now able to confidently pen a piece that of course you can try the tortured with no problem and it’s much easier to do it in the courts than in military proceedings. That’s what they have so proudly done. It’s what THEY have made of the American institutions of justice – our DOJ, which they’ve peopled with those like themselves who are willing to suckle on the torture teat as long as they get their payoffs of personal power now, or slots at Harvard or Lockheed later – our courts, which they’ve peopled with Silberman’ and Kavanaughs.
So every morning the Obamas and the Bellingers and Holders and Comeys can look in the mirror and reaize how they’ve transformed the country over a decade. From one where the Department of Justice, as it conspired in the torture od kidnap victims, accepted that they needed a covert “solution” for what to do with those victims bc “you could never try them,” to one where not only can you do it, you can prissily publish opinion pieces in the mainstream media about how much easier it is to launder torture through civilian courts than through the military.
And the indifferent acceptance of it all – they’ve also helped intrinsically change who Americans are and what America is – when the Department of Justice sell torture for years, it changes us.
There’s no way any of the men and women who’ve participated in this can be anything other than deep seated atheists, no matter what label they give themselves publically. If you have any kind of faith at all and look at what you’ve done, the thought of what you’ve done to not only your own soul, but those of all those you’ve shaped, would leave you terrified.
This is the legacy of the OLC rulings and the refusal of the Obama administration to take the torture that did take place seriously.
But Kaplan has not considered recent evidence, perhaps not presented to him, that Ghailani may have been the subject of a medical experiment, for a period of years. Will his attorneys explore this aspect? Will they ask their client about blood draws and saliva swabs? I don’t know. But the evidence is growing that the Bush administration, using their intelligence and military intelligence and other agencies, e.g., JPRA, in a large-scale experimental program on how human beings respond to uncontrollable stress, and to various behavioral and biological stressors, set forth in a controlled fashion. The fact of this war crime is something the government will try and suppress, for reasons apparent in this case. Could the judge make the same argument about holding Ghailani if it were for purposes of human experiment?
I suspect that we are going to hear more about this soon, as I suppose you know. Unfortunately, I think we are probably going to see the same two sides that we have seen before: Rahm’s “Don’t rock the boat! We’ve got too much at stake here” (referring to health care, economic regulation, dealing with the oil volcano, impending elections, etc etc), vs. the blind pursuit of justice. Rahm has won this battle before; will he win it again?
Bob in AZ
I am not suire the torture is the most relevant part here. If this
“Kaplan rejected Ghailani’s argument that, since the government had held him for five years before charging him, he had been denied the right to a speedy trial. Mostly, Kaplan ruled that, since the government got no advantage from waiting, the delay did not infringe on Ghailani’s rights.”
is an accurate summary of the decision, then the government can hold you for substantial parts of your life, and that is wrong even if they served tea and biscuits on every day on a vacation island.
So either the summary or the decision is wrong?