Coyote Blog

The whole Guantanamo issue has to be one of the great bait and switches of our time.  The fundamental human rights abuse was always the notion that civilians could be seized by the US Government and held, as they say in Britain, at the President's pleasure  (ie as long as the Administration wants, up to and including forever).

Somehow, this whole issue got perverted into a debate about Gitmo, rather than detentions per se.  I warned any number of times that if we kept focusing on merely the location of detention, rather than detention itself, it would give the government cover to close the facility and declare victory, while continuing the abusive practice of indefinite detention.

Unfortunately, I was right, both in this fear and my fear that Obama, once give presidential power, would be reluctant to eschew it.

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

Unsurprisingly, after talking about various approaches for Congressional or Judicial oversight of Administration detention decisions, the Administration has apparently dropped plans for this.  Even the "security courts" of which I have always been suspicious (I always picture a jury full of TSA airport security screeners) have been ruled out by Obama.  We are back to the Bush doctrine of detention at the President's pleasure.

...the problem is indefinite detentions.  But in its general sloppiness, the press over the last 8 years has branded the problem as "Guantanamo Bay," giving Obama the ability to claim progress by closing Gitmo, while still maintaining the right to indefinite detention at the Administration's pleasure.

I guess we have to take our allies where we find them in defending the Constitution, so I will quote Russ Feingold's thoughts here (despite his history of legislative attacks on the First Ammendment).  Via Q&O:

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world....

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Bruce McQuain concludes:

Anyone monitoring what Barack Obama has been saying since taking the oath of office who doesn't see a rather large authoritarian streak in the man hasn't been paying attention. What he is suggesting is blatantly worse than what the Bush administration did. Unfortunately, it is mostly being lost in the ground clutter of the financial crisis. But it is certainly there for those who take the time to look.

Update:  This Rachel Maddow video on Obama's speech is great. She calls it the Department of Pre-Crime based on the Phillip K Dick novel and Tom Cruise movie:

First an apology  (a real apology, not one of my snarky non-apologies).  On a number of occasions I have written that I thought torture accusations at Gitmo were overheated and a distraction from the real issue -- unlimited incarceration by executive order.

It turns out that what I would very much describe as torture has occurred at Gitmo.

Torture of detainees at Guantanamo Bay has been systematic, extensive and a matter of deliberate policy, says a report originally prepared in 2007 by the International Committee of the Red Cross. Obtained by journalist Mark Danner, the report, which detailed the complicity of medical personnel in the mistreatment of detainees, has been posted online (PDF) by the New York Review of Books.

Techniques practiced at Guantanamo and elsewhere on the 14 detainees examined in the 41-page report include suffocation by water, prolonged standing with arms chained above their heads, beatings, confinement in a box, sleep deprivation and other tactics that involve both physical and psychological abuse. While written in somewhat technical terms, the report emphasizes that the detainees' treatment "amounted to torture and/or cruel, inhuman or degrading treatment."

I am not unaware that the world is a dangerous place, and is filled with people who want to do us harm no matter how nice we are, precisely because we are nice (and rich of course).  But there is a line we draw in a free society over which we do not cross, even at the risk of our own safety, because it imperils our own humanity.  I believe the treatment described in this report crosses that line.

That being said, it is increasingly clear that I was right in one sense - the focus on torture has completely occluded the detainment issue, so much so that Obama appears to be getting away with actually adopting an even more onerous detainment policy than the Bush administration.

The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.

More from Glen Greenwald:

Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team."  Remember:  these are not prisoners captured in Afghanistan on a battlefield.   Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges.  That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

For years I have complained that the opposition to the GWB administration was focused on the wrong things vis a vis the detention policy at Gitmo.  There was too much focus on Gitmo itself as a lightening rod, and too much discussion of whether flushing a Koran down the toilet was torture.  My point was that there didn't have to be torture for it to be wrong to hold non-uniformed suspected non-combatants in a non-declared war indefinitely, as if they were captured Nazi U-boat commanders.   For example:

I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted.  But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me.  As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.

Justice Scalia argued that giving habeas corpus rights to enemy combatants during war time was unprecedented, but I responded:

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?  One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well.  As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant.  I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine [that] the Supreme Court, encountering this new situation, sides with the individual over the government.

So now, just as I feared, the soil was fertile for a classic political bait and switch.  Obama agreed to close Gitmo, the lightening rod of the controversy, thereby inspiring us to believe he is changing policy.  When, at its heart, the real problem is still there:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration's legal policy in the courts.

I assume she and Holder are toeing the Obama line on this, though they could be the bearers of a trial balloon and it may be Obama has not made up his mind.  I hope so.  Here is some more.

"Do you believe we are at war?" Graham asked.

"I do, Senator," Kagan replied.

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.

"Do you agree with that?" the senator said.

"I do," Kagan replied.

Graham said that under the law of war, the government can say, "If you're part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?"

Kagan replied, "I think it makes sense, and I think you're correct that that is the law."

"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals," Graham concluded.

I may have missed it, but did the AUMF or whatever it was that Congress passed before we entered Afghanistan and Iraq actually declare we were at war with the organization named "Al Qaeda."  Or does the president saying the words "war on terror" enough times in 8 years just make it so?