Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

Obama Administration Tries to Get Out of Its Khadr Problem

Add this to the list of things I might laugh about if it weren’t so damned sad and awful. The Administration has now realized trying a Canadian accused of murder for killing someone in an active battlefield as a teenager exposes the Gitmo show trials as a kangaroo court. But they don’t know whether they have the authority to intervene to stop it.

Administration officials would speak only anonymously about deliberations on whether to try to abort the trial. But their view about the need to improve the system’s perceived credibility — so allies will cooperate by providing evidence or extraditing defendants — was echoed by Kenneth L. Wainstein, assistant attorney general for national security in the Bush administration.

“It is important for the government to be able to proceed through a trial, to do so in a transparent way, and have the world see that this is a fair process with strong safeguards and full due process,” he said. “The sooner that happens, the better.”


Administration officials have discussed whether senior civilian leaders at the Pentagon or elsewhere could get involved, helping to revive plea negotiations or even directing Admiral MacDonald to make a more attractive offer. (Admiral MacDonald did not respond to an interview request.)

A similar high-level intervention would clearly be allowed in the regular court system, where the attorney general supervises prosecutions. But tribunal rules insulate commission officials.

A provision in the Military Commissions Act prohibits “unlawful command influence,” defined as attempting “to coerce, or, by any unauthorized means, influence” the judgment or actions of prosecutors or the convening authority. Officials are debating what that means.

But it seems there are at least two things complicating this picture (I’ll think of more after I drink more coffee).

First, in discussions of Khadr’s potential plea deal, no one seems to admit that the plea deals themselves discredit the military commissions. The press reacted little more favorably to Ibrahim al Qosi’s pretend 14 year sentence that everyone knew was actually two years than they have to the rulings in the Khadr case admitting rape threat tainted evidence. The kabuki quality of the plea deal was one of the reasons Khadr cited for firing his lawyers and rejecting the plea deal they were offering him (they were offering him 30 pretend years and 5 real ones). So a sweeter plea deal, without fixing the whole double secret sentence business, won’t do all that much to restore the credibility of the military commissions.

Also, it seems like the Administration has one other option (and I hope the Canucks will expand on this in comments). After all, our government has transferred every other western detainee back to his home country. There have been discussions with Canada about doing the same. Why not make Omar Khadr Stephen Harper’s problem? Nothing in the military commissions would preclude the Administration from engaging in foreign policy, would it?

Of course, that would require the courage to stand up to the screeching fear-mongers who would attack the Obama Administration for making the same kind of deals that the Bush Administration made.

But international credibility doesn’t come for free. If the Administration is serious about winning international credibility for our kangaroo court, it is going to have to be willing to make the case for credibility itself. And right now, it still seems to be hoping for some gimmick to get out of its Khadr problem.

Military Commissions Good Enough for Teen Acting in Self-Defense, But Not Alleged Cole Bomber

The WaPo reports that the Administration has shelved plans to try Abd al-Rahim al-Nashiri in military commissions.

The decision at least temporarily scuttles what was supposed to be the signature trial of a major al-Qaeda figure under a reformed system of military commissions. And it comes practically on the eve of the 10th anniversary of the attack, which killed 17 sailors and wounded dozens when a boat packed with explosives ripped a hole in the side of the warship in the port of Aden.

In a filing this week in the U.S. Court of Appeals for the District of Columbia, the Justice Department said that “no charges are either pending or contemplated with respect to al-Nashiri in the near future.”

The statement, tucked into a motion to dismiss a petition by Nashiri’s attorneys, suggests that the prospect of further military trials for detainees held at Guantanamo Bay, Cuba, has all but ground to a halt, much as the administration’s plan to try the accused plotters of the Sept. 11, 2001, attacks in federal court has stalled.

Only two cases are moving forward at Guantanamo Bay, and both were sworn and referred for trial by the time Obama took office. In January 2009, Defense Secretary Robert M. Gates directed the Convening Authority for Military Commissions to stop referring cases for trial, an order that 20 months later has not been rescinded.

Which of course means that our government (though the article suggests this is a distinction between the Bush and Obama Administrations, since Gates–though he spans both Administrations–has not ordered the Convening Authority to start referring cases) has decided it’s okay to try Omar Khadr, who was 15 and arguably acting in self-defense for his alleged crime, in a military commission. But not to try al-Nashiri, at least allegedly a genuine terrorist.

To be fair, the WaPo suggests the Administration is holding off until it can have civilian trials for other High Value Detainees (presumably, still the 9/11 conspirators). So it may well be a supportable goal. But it all seems to add to the Kangaroo stench around the military commissions.

Gitmo Judge: Rape Threats Are Okay If They Don’t Work

Here’s what the military judge in the Omar Khadr trial, Colonel Patrick Parrish, said to justify admitting Khadr’s own confessions as evidence. (h/t Carol Rosenberg, whose story on this ruling is here)

There is no credible evidence the accused was ever tortured as that term is defined under M.C.R.E.304(b)(3), even using a liberal interpretation considering the accused’s age. While Interrogator #1 [Joshua Claus] told the accused a story about the rape of an Afghan youth in an American prison, there is no evidence that story caused the accused to make any incriminating statements then or in the future. In fact, the credible evidence is that the accused started to make incriminating statements only after he learned the Americans found the videotape at the compound where the firefight took place which shows the accused and others making improvised explosives and placing them along the roadside at night. No statement offered against the accused was derived from, the product of, or connect to any story Interrogator #1 told to the accused.

Now, here’s what MCRE304(b)(3) says (PDF 206ff):

(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:

The first definition of treatment that could cause prolonged mental harm is:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

So Parrish is saying that the implied threat of rape does not constitute the “threatened infliction of severe physical pain or suffering.” And that’s even ignoring the part of Joshua Claus’ story–as told by Spencer–where the fictional youth raped in an American prison died as a result.

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantanamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. [my emphasis]

So the guy running the Kangaroo Court for this child soldier has decided that rape threats do not constitute a threat of severe pain or suffering.

Mind you, as I alluded to here and made explicit by Parrish’s ruling, Gitmo rules say specifically you can use information so long as the information itself was not collected using torture. Which is why Parrish is so careful to argue that Khadr’s confessions have nothing to do with that threat of severe pain or suffering that Parrish seems to think is no big deal, because then everything’s admissible!

In other words, the logic of Parrish’s ruling is that the use of rape threats as an interrogation tactic is no big deal, provided that it was an ineffective interrogation tactic.

Khadr Trial Suspended for at Least 30 Days

Things are not going well in our Kangaroo Court. After quickly determining a fake sentence for Osama bin Laden’s cook, Ibrahim al Qosi, matters turned to trying Omar Khadr for an alleged murder that normally wouldn’t be a crime that he allegedly committed as a teenager using evidence gotten through rape threats.

So they picked a jury (but not, thanks to a disqualification from the prosecution team, the guy who agreed with Barack Obama that Gitmo should be closed) and proceeded to the witnesses. Lieutenant Colonel Jon Jackson was in the middle of highlighting the many inconsistencies of prosecution witness testimony when he collapsed in the court room. Daphne Eviatar was in the court room when it happened:

On Thursday afternoon I watched Omar Khadr’s sole defense lawyer, Lt. Col. Jon Jackson, collapse in the Guantanamo Bay courtroom in the middle of conducting a cross-examination of a key government witness. He was taken away on a stretcher by ambulance, hooked up to an I.V. Fortunately he was breathing normally and I hope will be fine, though as an observer in the courtroom I was stunned. It all happened so suddenly and he seemed to be in perfect health and in complete control of his questioning. It seems unlikely at this point that this historic trial will resume on Friday, as scheduled.

It turns out the collapse was related to complications from gall bladder surgery Jackson had about six weeks ago. He just got medivacked to the US for treatment and Khadr’s trial has been suspended for at least 30 days. So the showcase war crime trial for allegations that most don’t consider to be a war crime will have to wait (and they may have to start all over again with jury selection).

And Omar Khadr, who has been held for a third of his life, has another month gone from his life.

Update: Here’s Carol Rosenberg’s report on all this.

Qosi Sentenced to 14 Pretend Years, Reportedly 2 Secret Years

Remember when Omar Khadr wrote this about the military commissions?

Firstly, the unfairness and unjustice of it. I say this because not one of the lawyers I’ve had, or human right organization or any person say that the commission is fair, or looking for justice, but on the contrary they say it is unfair and unjust and that it has been constructed solely to convict detainees and not to find the truth (so how can I ask for justice from a process that does not have it or offer it?) [new color ink–apparently added later] and to accomplish political and public goal and what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only 5 years so I asked why the 30 years? I was told it make the US government look good in the public eyes and other political causes. [my emphasis]

Best as I can tell, the fake plea bargain Khadr was offered–in which he would be sentenced publicly, but in which there was a secret agreement that he would serve just a fraction of that time–is what happened to Osama bin Laden cook Ibrahim al Qosi today. After making great show of picking a jury and directing them they could sentence Qosi to between 12 and 15 years, the military commission sentenced al Qosi to 14 years.

But everyone knows that 14 year sentence doesn’t represent Qosi’s real sentence. Instead, he is reported to be serving 2 more years–though there is a bit of a dispute because his plea promised he’d serve his time in communal quarters even though DOD regulations prohibit that.

The day opened with Air Force Lt. Col. Nancy Paul, Qosi’s judge, reversing herself on an order to the prison camps Monday that, whatever sentence Qosi receives, he must be held in a communal POW-style camp for compliant prisoners.

Paul issued the order Monday, saying she understood captivity in the company of some of the other cooperative detainees at Guantánamo was part of a secret annex to his plea agreement approved by retired Vice Adm. Bruce MacDonald, the top Pentagon official overseeing military commissions.

But by Wednesday she noted that collective confinement was not a promise but a recommendation, in part, because, despite a Pentagon bureaucrat’s directive in 2008, the U.S. military has never developed a policy or plan for how to confine war court convicts at Guantánamo.

Call me crazy, but if I were Qosi I’d be really nervous about this double secret plea deal, given that two years is longer than most people are deployed to Gitmo, and two years from now we’ll be in the middle of Presidential election season again.

But that’s what passes for justice in America’s prison colony these days, I guess.

Helen Would Have Asked about the Rape Threats for Teens

That last thread is getting a bit long, and since McCaffrey the MilleniaLab says we’re going on a walk NOW, I wanted to throw up more space for discussion.

So let me just make this observation. Apparently, not one of the crack reporters at yesterday’s White House press conference asked any question about what it means that a judge speaking for the United States of America decided the other day that using rape threats with teens is an acceptable way to force confessions.

As I suggested, perhaps Robert Gibbs’ intemperate rant wasn’t so stupid after all. It distracted from the sad state of America’s claims at being a law-abiding nation. Lots of questions about the professional left. No questions about threatening a teenager with rape and then using the confession that results as admissible evidence.

Which brings me to a point WaldenE made. Used to be, these kinds of questions got asked in White House press briefings. Back when Helen Thomas was still the Dean of the White House press corps, she would have asked about military interrogators using rape threats with teens (after which, Robert Gibbs would have sighed and given her a patronizing response). No longer. Because she was chased out because–they say–she was an opinion journalist and because she made a comment that Robert Gibbs might call “inartful.”

These things are all connected somehow…

More Kangaroo Court Craziness

Not only did our Kangaroo Court in Gitmo decide that it’s okay to threaten teeenaged boys with rape to get them to confess, but it also announced that the sentence for Ibrahim al Qosi would remain sealed until he was released.

In one courtroom, Air Force Lt. Col. Nancy Paul, a military judge, announced that the length of Ibrahim al Qosi’s plea bargain sentence would be a secret until he was released. The judge then began questioning a jury pool of 15 senior American officers who would on Tuesday deliberate Qosi’s prison sentence.

So much for using the transparency of trials to win hearts and minds! David Iglesias, of the US Attorney firing scandal, is about to issue a statement on this secret sentence.

Then, back to Khadr’s Show Trial, the judge admitted a video crafted by a someone with little real experience in terrorism that has nothing to do with Khadr.

The other disappointing part of today’s hearing was that the government has once again introduced Evan Kohlmann as an expert on al Qaeda and related terrorist groups. The 31-year-old Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet. He appears to believe that his inability to speak or read Arabic did not hinder his ability to review or understand what he found. Kohlmann has created a video that tells the history of al Qaeda and its goals, based, likewise, on video clips and other public documents he’s found online.

Whether Kohlmann is accepted as an expert or not (he probably will be, as he has been in two previous military commission cases and in 16 federal court trials, all testifying for the prosecution), the real issue here seems to be what his expertise has to do with Omar Khadr. Kohlmann testified today that he knows nothing about Omar Khadr except the charges against him. From what I can tell, the defense isn’t contesting that the U.S. is at war with al Qaeda or that al Qaeda has tried to attack the U.S. repeatedly, including on September 11, 2001. But the prosecution isn’t alleging that Omar Khadr had anything to do with that attack, or any of the others that constitute the bulk of Kohlmann’s movie. So I don’t see how the 90-minute historical survey of al Qaeda and Islamic extremist terrorism is going to shed light on whether Omar Khadr is guilty as charged.

Just in case there were any doubts about this being a show trial or not.

And, from Daphne’s update, the Judge also accepted the US claim that killing a uniformed soldier during a war is illegal.

And finally — and perhaps most significantly — Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side’s soldier in a war has never before been considered or prosecuted as a violation of the laws of war.

Happy Monday! You can get more up-to-the-minute updates on the Gitmo Show Trials by following Carol Rosenberg, Muna Shikaki, and Daphne Eviatar on Twitter.

The US Believes It’s Okay to Threaten Teenagers with Rape

Carol Rosenberg tweets:

Omar Khadr’s military judge just ruled that ALL of his confessions from Afghanistan to #Guantanamo will go to trial. None suppressed.

The Toronto-born captive’s defense had wanted his interrogations excluded on grounds they were not voluntary. Col. Patrick Parrish disagreed

#Khadr‘s war court judge also agreed to use at trial a homemade video of the 15-year-old allegedly building, planting mines in Afghanistan

So in spite of the fact that Joshua Claus threatened Omar Khadr with rape and potentially death, our military “justice” system does not believe that taints Khadr’s confession.

So nice to see our Kangaroo Court is living up to billing. It shames the US terribly in the process.

Update: it sounds like Khadr’s lawyer takes the same lesson from this I do:

Omar #Khadr‘s Canadian lawyer, Edney, calls Army judge “a disgrace” for admitting the Canadian’s admissions as a 15-year-old at trial.

Will DOD Ban Itself for Publishing Joshua Claus’ Name?

Carol Rosenberg tweets:

Just got formal notice: Pentagon publicly naming Interrogator No. 1 who testified remotely to #Guantanamo as ex-Army Sgt. Joshua Claus

Army Maj. Bradsher read me a Pentagon policy statement that said Claus’ “own actions” mean publishing his name does not violate ground rules

You’ll recall that DOD banned Carol Rosenberg and three other key Gitmo journalists when they published Claus’ name–even though one of them, Michelle Shephard, had published an on-the-record interview with him in the past. Yet now DOD says–on the eve of the Khadr trial–that it’s okay to publish his name? And as justification, they say his own actions, rather than the public nature of his name, means publishing it does not violate ground rules?


Because if you’re going to pretend your arbitrary and capricious system of censorship is not arbitrary and capricious, you might want to come up with better excuses than that.