Tuesday, April 29, 2008

The Truth About The Military Commissions Laid Bare at Guantanamo

Yesterday, Monday April 28, 2008, the man who used to be the Chief Prosecutor at Guantanamo gave sworn testimony that puts the lie to the farce of the of the Military Commissions AcT (MCA) proceedings being used to try alleged terrorists. Col. Morris Davis told the tribunal hearing the case of Salim Ahmed Hamdan that

Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

(Note, there is no transcript available at this time.)

Not only did Davis say that the outcome of these proceeding was rigged but that the motivation for even having the trials was political.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis also addressed the use of so-called "evidence" extracted by the use of torture.

He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

Col. Davis' statements in court were more specific and damning than the reasons he gave for resigning last October, as outlined in an op-ed in the L. A. Times. He articulated three reasons. First, Susan Crawford, the new person appointed as the convening authority issued orders that removed any pretense of her objectivity in the proceedings. Second, Crawford was undermining any possibility that the proceedings would be viewed as legitimate by the Nation and the world, by insisting on more secrecy than what was needed for national security reasons. Finally, as echoed in his testimony he

resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.

Subsequently, Col. Davis felt the need to be even more critical of the military commissions. In an article in the Nation after six Guantanamo detainees were charged he talked about the prospect of fair trials by relating the conversation he had with Haynes, which was later covered in his testimony to the tribunal.

Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

This has been a long road to disillusionment for Col. Davis. Before he testified, before the Nation interview, and before his op-ed following his resignation, he wrote an op-ed in the Times defending the treatment of prisoners at Guantanamo and the fairness of the MCA procedures. He summarized by saying,

Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.

Four months later, after seeing how the Bush Administration cretins would work to subvert the purpose of the law (though I am not one who ever believed it workable) and further besmirch the principles of the nation he had enough. Though he has already publicized his view regarding the travesty of the MCA proceedings, what he did in the Hamdan trial is different. He swore under oath as to what he knew, had seen and had heard.

It is easy to be cynical about what, if any, effect this testimony will have on the Hamdan trial. But it seems undeniable that sworn testimony from the ex-Chief Prosecutor that challenges the underlying fairness, objectivity and veracity of the proceedings in Guantanamo, conducted under the auspices of the Military Commissions Act, will rightfully give support to all those who have questioned the validity of this process from the outset. Also, it should lay the groundwork for a truth telling session, either by the court or Congress, with Brig. Gen. Thomas W. Hartmann, Deputy Defense Secretary Gordon R. England, and William J. Haynes II. Hopefully, it will also generate political support for the Congress to finally begin holding the people in this administration accountable for the travesties they have committed in our names.

There is one final sad note about all of this. Even if these trial were fair Bush has corrupted the system beyond recognition as pointed out in this quotation from the Nation article,

Says ACLU staff attorney Ben Wizner, "The trial doesn't make a difference. They can hold you there forever until they decide to let you out." The one person to be released from Guantánamo through the judicial process, Australian David Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007, "In an ordinary justice system, the accused must be acquitted to be released. In Guantánamo, the accused must plead guilty to be released."

Friday, April 11, 2008

Berkeley Dean Says Yoo's Actions Don't Warrant Firing

In an announcement to faculty and students Christopher Edley, Jr. , Dean of the Boalt Hall School of Law at Berkeley said that in his personal opinion the actions of tenured professor Jon Yoo do not rise to the standard that would warrant Yoo's dismissal.

That is not to say that Edley is an apologist for Yoo. In fact, some of his comments are striking. Edley writes,

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law.

Edley also recognizes the special role that lawyers play in the government.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter?—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Notwithstanding his lack of regard for Yoo's work Edley says that the standard for removal is rightfully high, in order to preserve the principles of academic freedom.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

In my mind, the jury has yet to be empaneled on the question of whether Yoo's actions rise to the level of a legal crime. I think there is no doubt he committed grievous moral crimes.

There is one thing the Dean says with which I seriously disagree. Edley writes,

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Rumsfeld, Bush and the rest are certainly more culpable than Yoo. But Yoo was more than an advisor. He was the indispensable enabler. Without his "legal" opinions, the abuses would have stopped or not even begun. For that, Yoo deserves his special place among the reviled.

The process of holding Yoo accountable may start with John Conyers hearing in May which has now been expanded to embrace the subject of the Principle's Meetings, where specific torture techniques were planned and approved by Rice, Rumsfeld, Ashcroft , Tenet, and Cheney, on behalf of and with the certain concurrence of Bush.

Wednesday, April 09, 2008

John Yoo's Torture Memo Is Going To Court

Lawyers for Ali Saleh Kahlah al-Marri have requested the Fourth Circuit consider the Yoo memorandum in its deliberations on al-Marri's pending appeal. Specifically the lawyers argue that al-Marri was designated an illegal enemy combatant based on the erroneous legal advice contained in the Yoo memorandum and that if the Circuit Court upholds his detention it will be doing so on the basis of advice that even the Department of Justice has rejected.

This developnent is discussed in this Washington Post article and in Scotusblog.com.

The March 14, 2003 Yoo Memorandum has been the subject of much discussion, including this post by Valtin where he publicizes the move by the National Lawyers Guild to have Yoo disbarred. One of the problems that many of us who have reviewed the memorandum have in writing about it that it is such a terrible piece of legal work that it is hard to know where to start.

The memorandum has four parts, but all hinge on the first two parts which are summarized as follows:

In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President.

This can be further summarized more succinctly. According to Yoo, The Commander in Chief can take any action he wishes regardless of whether that action would violate any provision of the Constitution or any Statute passed by Congress.

There is only one problem with his conclusion. There is no Supreme Court decision supporting that conclusion. Yoo cites the very few Supreme Court decisions on the subject and none of them say that. There are opinions discussing the breath of the President's powers in waging war, but those cases do not involve direct violations of Constitutional or statutory provisions. They involve questions regarding the President's ability to take an action in the absence of express statutory authority. And even here Yoo's opinion is on shaky ground because of YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), where the Supreme Court struck down President Truman's attempt to seize steel mills during the Korean war in the absence of Congressional authorization.

Furthermore Yoo knows that his opinion is built on a house of cards. In a clever footnote he states,

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

We're not saying the Constitution doesn't apply during war time, because the Court has held otherwise. We're just saying that it doesn't apply to the President's actions while he is conducting a war. Nice try John, but no cigar.

In any event, the filing in the al-Marri case is good news because we just might get an early glimpse of an Appeals Court's opinion on Mr. Yoo's handiwork. As reported by the Post,

"The memo makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations," Jonathan Hafetz, an attorney with the Brennan Center for Justice who represents Marri, said yesterday. Defense attorneys contend that Marri, who is being held at a Navy brig in South Carolina, has been subjected to such interrogation methods as sleep deprivation and being forced to stand in uncomfortable positions for long periods.

Legal "experts" have different views on the issue. Again, as reported by the Post,

"I'm not sure the Yoo memo is of direct assistance to Mr. Marri," said Douglas W. Kmiec, a Pepperdine University law professor who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations. "The memo primarily concerns aggressive forms of interrogation, not primarily the president's authority to designate individuals as enemy combatants."

But David H. Remes, who represents 16 detainees at Guantanamo Bay, Cuba, said it was "perfectly legitimate for al-Marri's counsel to bring this to the court's attention."

He said: "The detention and treatment of al-Marri rest on the premise that as an enemy combatant he enjoys no constitutional protections. If the administration has repudiated the memo supporting that premise, then the government's justification for holding al-Marri as an enemy combatant crumbles."

I would love to see a court react directly to the Yoo memorandum, or even just give it the back of their hand in some footnote or dicta somewhere. I suspect this will probably not be that case, but hope springs eternal.

Thursday, April 03, 2008

Yoo Says the Fourth Amendment Does Not Apply To Bush

John Yoo's damage to our Constitution and the nation it created is even worse than we thought. We now discover that in 2001 he told BushCo that they were free to violate the Fourth Amendment of the Constitution. This little part of that quaint document says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yoo, on behalf of the Office Of Legal Counsel of the Justice Department, the office that tells DOJ what the law is, advised

Our office recently concluded that the Fourth Amendment had no application to domestic military operations,"

We do not yet have a copy of the 2001 memo. The language above is found in a footnote in Yoo's 2003 memo which holds that Bush can order the torture of anyone as long as he deems it necessary.

The full text of the footnote in the 2003 opinion states,

10 Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, n, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terorist Activities Within the United States at 25 (Oct 23, 200 I).

If U.S.v Verdugo-Urquidez is the opinion relied on by Yoo, that is a slender reed indeed. That opinion involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government.

There is another footnote in the 2003 opinion which is almost comical. Note 11 provides.

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) . 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendmenr:simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

It would not be surprising if we find a similar statement in the Yoo's 2001 regarding the Fourth Amendment, because that is the nature of his "opinions." They are filled with citations, most of which don't support and in many cases contradict the conclusions reached. After thousands of words we are then given conclusory statements to the effect that the President has the power to do whatever he wishes. While the Constitution applies to the President, it just doesn't apply in such a way that would restrict him from doing whatever he, in his sole omnipotent discretion, deems necessary.

The Justice Department has since disavowed both memoranda, they claim. A DOJ spokesman said

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

There is confusion as to whether this memo was the legal underpinning for Bush's so-called Terrorist Surveillance Program.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program. "TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

That sounds like horsepuckey to me since Yoo's memo

was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The importance of this memo, though, is not whether it was used to justify one program or another, or even whether it was subsequently disavowed. Rather, it illustrates the mindset of the lawless group of people running our government. We have seen much evidence of this by their deeds in the last seven years. We know understand better why they have such utter contempt for the Constitution. Their lawyers had seen written in the Document a new Article that says,

"Nothing in this document shall in any way constrain, restrict or inhibit the authority of the 43d President from doing whatever he wishes in his role as Commander in Chief. In that role he shall have all the powers possessed by the King of England prior to the Magna Carta plus such other additional powers as he deems necessary."

My apologies for being so snarky, but the outrage of these guys leaves little room for intelligent discussion. That will come later when we have the actual text of this memo to read.