Andrew Sullivan, the King of Bloggers, has written a Newsweek cover story which is featuring heavily in American political discussion on tv, in newspapers and on blogs right now. From over here, it’s sometimes difficult to realize that Sullivan is not just a blogger, albeit a big one, but also a pretty prominent “public intellectual” (as they say) in the US, who from time to time -- as a very early advocate of gay marriage, as proponent of the Iraq War, as supporter of Obama -- generates a lot of public debate.
In the Newsweek article, Sullivan argues, as one of the first people to elaborately do so, passionately for Obama’s re-election. He basically says that Obama’s political strategy is a “long game”, of which we have not seen the results yet, which will only play out in eight years. In doing so, he obviously and correctly dismisses the president’s conservative ”critics” (we may just call them lunatics), but also takes on criticism of Obama from “the left”. Personally, while I certainly agree with Sullivan that Obama has by and large been a good president -- in that he has saved the US and the West from plunging into a systemic crisis largely caused by Bush, through the stimulus, the bail-outs of Wall Street and the auto industry, having healthcare reform passed, getting out of Iraq, reaching out to the Muslim world, responding carefully to the Green Revolution and the Arab Spring, and taking on Qadhafi -- he has also failed miserably to keep up to his promises to restore the rule of law. Under Obama, indefinite detention has been enshrined into law, Guantánamo Bay has seen its tenth birthday, military commissions have been kept open, a Drone War killing hundreds of innocents has been started, extrajudicial assassination has become normal, and a war on whistleblowers and transparency-seekers has been waged. Torture has merely been halted by executive order and can easily be reversed by a Republican president.
This, I think, is unforgivable; it is a core reason not to support Obama’s re-election; and Sullivan passes it too easily by. I also think he fails to engage seriously with Obama’s critics that he relents too easily in the face of opposition, as was the case with healthcare and the debt ceiling crisis. Sullivan doesn’t mention anywhere the deep interpenetration of the Obama administration and Wall Street lobbyists. And, finally, I think it’s kind of slavish and rather uncritical to say: “It’s all part of the masterplan, just wait, it will all play out in eight years, just vote now, it’s Obama!” But that is a tendency you see more often in Obama supporters.
Anyway. The only reason I wanted to write this was because I thought it was funny to see Sullivan, whom you almost only know by writing, defend his article on television. And he’s doing it pretty well actually. Enjoy this weird-in-a-sympathetic-way person’s discussion with a Republican supporter:
- Edit: In the best response to Sullivan’s article so far, here’s Conor Friedersdorf, who writes it down better than I can. First he asks if Sullivan would have supported a Republican in 2008 who would have proposed the following:
(1) Codify indefinite detention into law; (2) draw up a secret kill list of people, including American citizens, to assassinate without due process; (3) proceed with warrantless spying on American citizens; (4) prosecute Bush-era whistleblowers for violating state secrets; (5) reinterpret the War Powers Resolution such that entering a war of choice without a Congressional declaration is permissible; (6) enter and prosecute such a war; (7) institutionalize naked scanners and intrusive full body pat-downs in major American airports; (8) oversee a planned expansion of TSA so that its agents are already beginning to patrol American highways, train stations, and bus depots; (9) wage an undeclared drone war on numerous Muslim countries that delegates to the CIA the final call about some strikes that put civilians in jeopardy; (10) invoke the state-secrets privilege to dismiss lawsuits brought by civil-liberties organizations on dubious technicalities rather than litigating them on the merits; (11) preside over federal raids on medical marijuana dispensaries; (12) attempt to negotiate an extension of American troops in Iraq beyond 2011 (an effort that thankfully failed); (14) reauthorize the Patriot Act; (13) and select an economic team mostly made up of former and future financial executives from Wall Street firms that played major roles in the financial crisis.
Yet President Obama has done all of the aforementioned things.
No, Obama isn’t a radical Kenyan anti-colonialist. But he is a lawbreaker and an advocate of radical executive power. What precedent could be more radical than insisting that the executive is empowered to draw up a kill list of American citizens in secret, without telling anyone what names are on it, or the legal justification for it, or even that it exists? What if Newt Gingrich inherits that power?
He may yet.
[Sullivan's] Newsweek essay fits the pattern I’ve lamented of Obama apologists who tell a narrative of his administration that ignores some of these issues and minimizes the importance of others, as if they’re a relatively unimportant matter to be set aside in a sentence or three before proceeding to the more important business of whether the president is being critiqued fairly by obtuse partisans.
Like President Bush, [Obama] is breaking the law, transgressing against civil liberties, and championing a radical view of executive power -- and he is invoking the War on Terror to get away with it. As much as it was in 2003 or 2007, it is vital in 2012 that there be a backlash against these post-9/11 excesses, that liberty-loving citizens push back so that these are anomalies that are reined in, rather than permanent features of a bipartisan consensus that can only end in a catastrophically abusive executive operating in an office stripped by successive presidents and their minions of both constitutional and prudential checks.
That is the best case against Obama I can think of. It is, indeed, vital that there is a backlash against his policies.
This Wednesday will be the tenth anniversary of the US prison camp at Guantánamo Bay. Opened by Bush and, despite all his campaign promises, kept open by Barack Obama, this camp represents the warped state the rule of law has been put into in the US by both these presidents.
The New York Times has an impressive op-ed by Lakhdar Boumediene, one of the most well-known former Guántanamo prisoners, who was held innocent and subjected to enhanced interrogation techniques for seven years before he was released by court order.
Boumediene was head of the Red Crescent’s humanitarian aid for children department in Bosnia-Herzegovina before he was captured off the streets on October 19, 2001 by the US Army, deported to Gitmo, and held incommunicado without recourse to a lawyer, the court system, or Geneva protections. While he was subjected to stress techniques, his two daughters had to grow up for seven years without him. Only when the Supreme Court intervened to stop the Bush administration’s lawless practices, Boumediene was granted access to court, found innocent, and released.
His case represents the entire argument against Guantánamo. No government on Earth should be allowed to indefinitely detain people and treat them like they want without any check by an independent judiciary. That is what we have human rights for. Barack Obama, moreover, is the president who has turned this once controversial policy into bipartisan consensus. Under this president, indefinite detention has even been signed into law.
So to remind everyone of this poignant fact, here’s the op-ed by Boumediene. There’s another one too, by the way, from yet another Guantánamo survivor, Murat Kurnaz.
ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.
Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.
I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and Herzegovina at the request of my employer, the Red Crescent Society of the United Arab Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a good life, but all of that changed after 9/11.
When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but afterward I was told that I could not go home. The United States had demanded that local authorities arrest me and five other men. News reports at the time said the United States believed that I was plotting to blow up its embassy in Sarajevo. I had never — for a second — considered this.
The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.
I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget.
Unbeknownst to many people, Barack Obama’s ascendency to the presidency has, despite his 2008 campaign promises, done almost nothing to reverse one of the most heinous policies of the Bush-Cheney era: the practice of indefinitely detaining people whom the US state deems “enemy combatants”, or terrorism suspects. Without charges and without recourse to a judge. The mere charge of being a terror suspect can still lead to uncontrollable, unaccountable detention by the American government; this is viewed by both Bush-Cheney and Obama as an inherent, presidential prerogative. No one who is not out of his right mind would not view this as in straightforward contradiction to the rule of law.
But President Obama’s record has just gotten even worse. After months of threatening to veto a bill put forward by the partly Republican-controlled Congress allowing the U.S. military to indefinitely detain anyone, including American citizens, anywhere in the world, including in the U.S., without charges, he has now said that he will sign it into law.
Thereby Obama, the 2008 darling of liberals and progressives, has become the president who has made extrajudicial indefinite detention at the charge of being an “enemy combatant” official law and policy, rather than an exception. Obama is even worse than Bush-Cheney! This should be clear to anyone who is still an Obama fanboy.
When in the 1950s, the McCarthy era, Congress presented Harry Truman with a similar bill allowing the indefinite detention of Communists and other ‘subversive elements’ without charges, Truman vetoed it. But Obama is not such a person. The right not to be detained forever by the state without a fair trial is a fundamental human right, part of the Western juridical tradition, that has just been violated possibly forever by this president.
This becoming law will also mean two things. First, that the U.S. military can now be involved in domestic policing activities (!). Second, that the battleground of the so-called ‘War on Terror’ has now been extended to American soil too. Can you believe that?
At this point, I would officially hope that Obama gets defeated at the polls next year. If Ron Paul’s ideas on economic policy weren’t so nutty, I would support him – a Republican - if he was the nominee.
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of “a war that appears to have no end”.
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US and applies the established principle that combatants in any war are subject to military detention.
The legislation’s supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law’s critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.
“We’re facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life,” he said. “When you join al-Qaida you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat.”
Graham added that it was right that Americans should be subject to the detention law as well as foreigners. “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” he said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.
“We’re talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk,” he said. “Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts.”
Paul was backed by Senator Dianne Feinstein.
“Congress is essentially authorising the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.”
So let it be noted that Obama here has followed the line of the most conservative Republicans.
Afgelopen vrijdag was Maarten van Rossem weer eens als vanouds aan het shinen bij Knevel en Van De Brink. Met een paar extreem relativerende en sarcastische opmerkingen kreeg hij de lachers op de hand en maande hij iedereen aan tafel tot kalmte. Het ging over 9/11, voor Van Rossem nog steeds één van z’n finest moments maar toch ook een klein trauma. De relativering die Van Rossem destijds plaatste direct na de aanslagen, tijdens de marathonuitzending bij de NOS, werd door weinig mensen gewaardeerd. Presentatoren, deskundigen en kijkers vielen over hem heen omdat hij maar niet in kon zien dat de wereld inderdaad op die dag inderdaad veranderd was en dat “alles nooit meer hetzelfde zou zijn”. Hij kreeg zelfs stapels hatemail en was geruime tijd niet meer welkom als Amerika-deskundige in Hilversum.
Nu, 10 jaar later, is het tijd voor Van Rossem om zijn gram te halen. Zijn voorspelling van 10 jaar terug zou uitgekomen zijn, de gevolgen van 9/11 zijn zeer beperkt gebleven. Hij meent dat achteraf gezien de economische crisis eigenlijk veel meer impact heeft gehad dan 9/11. Wel geeft hij toe dat hij op de dag zelf niet had kunnen bedenken hoe groot de stupiditeit van George W. Bush was en hoe gevaarlijk de mensen om hem heen waren. In een interview met de NOS:
Ook tien jaar later is hij het relativeren nog niet verleerd. 9/11 het begin van een nieuw tijdperk? “Ik zou zeggen; helemaal niet. Totaal niet. Wat is er nu veranderd in ons dagelijks leven, behalve dat we op de luchthaven onze riem en schoenen uit moeten doen?”
“Het moslimterrorisme heeft juist in moslimlanden gruwelijke toestanden aangericht. Maar dat is niet in Nederland, België of de VS, dat is in Irak, Pakistan en Jemen. Wij hebben twee aanslagen gehad, in Londen en Madrid. Ook erg op zichzelf, maar geen bedreiging voor het voortbestaan van ons type samenleving.”
“Als we terugkijken op 10 jaar 9/11, dan zijn al die rampen die ons zijn voorspeld door die zogenaamde deskundigen helemaal niet gebeurd. Jumbo’s op kerncentrales, ze zouden ons drinkwater vergiftigen. Niets van dat alles is ooit werkelijkheid geworden.”
En de veranderende verhoudingen in Nederland dan? “Het heeft ongetwijfeld de achterdocht ten aanzien van moslims wel bevorderd, maar als je denkt dat Nederland door een minuscule minderheid van 5 procent moslims wordt geïslamiseerd, dan ben je gek en heb ik verder geen commentaar dan dat. Ik vind dat een beetje meelijwekkend.”
“Onze ergste vijanden waren niet die terroristen van Bin Laden”, stelt Van Rossem, “maar onze eigen financieel-economische sector. De kredietcrisis is een veel en veel ernstigere zaak dat dat hele 9/11. Dat heeft ons aller dagelijks leven ingrijpend beïnvloed en zal dat de komende jaren blijven doen.”
“De grote paradox van allemaal is dat Amerika geprobeerd heeft een beleid te voeren dat hun veiligheid zou vergroten en het eindresultaat is dat de veiligheid van de VS veel minder groot is geworden. Dat komt vooral door die achterlijke oorlogen die duizenden miljarden dollars hebben gekost, waardoor het land nu in penibele omstandigheden verkeert.”
“Ik heb het al eerder gezegd: de grootste vijand van de Amerikanen zijn de Amerikanen zelf.”
Het beeld dat Van Rossem in dit interview en bij KvdB schetst klopt niet helemaal. 9/11 is wel degelijk het begin geweest van een nieuw tijdperk. Niet de aanslagen zelf, maar de reactie van de Amerikanen hierop heeft hier voor gezorgd. We zijn misschien niet ten onder gegaan aan “256 boeings die zich op nucleaire reactors zouden storten, vliegtuigen vol anthrax die ons de landbouw onmogelijk zouden maken en Wereld Oorlog III”, maar we leven wel in een wereld waarin de VS op meerdere fronten oorlog voeren met een kostenplaatje van 3.000 tot 4.000 miljard dollar, waarin Iran opeens een regionale macht is geworden, waarin “terroristen” nog steeds op Guantanamo worden onderworpen aan “enhanced interrogation” vastzitten op Guantanamo, waarin honderduizenden doden zijn gevallen in Irak en Afghanistan, waarin je inderdaad op elk internationaal vliegveld je schoenen uit moet doen voordat je mag boarden, en zo kun je nog wel even doorgaan. En de economische crisis duurt zolang voort, mede omdat de Amerikanen zich suf hebben geleend om deze oorlogen te betalen, waardoor ze nu geen middelen meer hebben om de gevolgen van de kredietcrisis op te vangen.
Een kanttekening die je kunt maken is dat 9/11 vooral voor een verandering in de Westerse wereld heeft geleid, maar dat als je de Atlantische oogkleppen afzet blijkt dat in grote delen van Afrika, Azië en andere delen van de wereld de invloed van 9/11 misschien een stuk kleiner is. Ook kun je nog beargumenteren dat 9/11 slechts een soort katalysator is geweest voor ontwikkelingen die al langer gaande waren, zoals de overal ter wereld opborrelende Amerika-haat, de afbrokkelende macht van de VS, de rol van non-conventionele oorlogsvoering, etc. Toch kun je moeilijk stellen dat de directe gevolgen van 9/11 niet hebben gezorgd voor grote veranderingen in de wereld. In een wereld waarin iedereen zo nuchter is als Maarten van Rossem zouden deze aanslagen inderdaad niet tot een cesuur in de moderne geschiedenis hebben geleid. Helaas is dat niet het geval.
De uitzending van KvdB, heel vermakelijk:
Van Rossem in de uitzending op 11 september 2001 met Maartje van Weegen:
In yet another confirmation that the Obama administration’s handling of counterterrorism policy is nothing but a continuation and, in fact, reinforcement of Bush-era policies, the US Department of Justice decided on Thursday that all cases against (former) low-level CIA and military employees suspected of having employed torture, sometimes leading to murder, are to be dropped, except two.
So there’s not gonna be any accountability for the breaches of human rights and the Geneva Conventions conducted under the last administration in the name of the ‘War on Terror’.
Back in August 2009, the Obama White House already decided that there would be no torture investigations regarding former administration officials (Bush, Cheney, Rumsfeld) and government lawyers (John Yoo, Jay Bybee) who invented and implemented the ‘legal’ architecture for things like indefinite detention, military commissions and ‘enhanced interrogation methods’ (torture), which eventually spread from Guantánamo Bay and the secret ‘black sites’ to Abu Ghraib and Afghanistan. Neither would there be investigations regarding CIA and military employees who stayed ‘within the lines’ of the new torture regime (even though a lot of people, including JAG lawyers, protested at that time).
The only exception to this immunity granted by Obama would be for those employees who went beyond even what was permitted by the Bush administration in terms of torture. And of those 101 cases, all are now dropped except two.
Those two cases are the most gruesome imaginable: one is of a detainee who froze to death in an American secret prison in 2002 after being stripped and chained to the floor, and the other is of the Abu Ghraib detainee who was photographed in 2003 with a guard holding her thumbs up. All other horrors perpetrated under the Bush administration will now be fully, legally protected.
Change we can believe in. And what’s more: except for one executive order ordering a halt to ’enhanced interrogation methods’, there’s nothing that can prevent a future president from starting to employ torture again…
Consider what’s being permanently shielded from legal accountability. The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons – ”black sites” — purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.
Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: ”We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: ”there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation’s history — the systematic, deliberate legalization of a worldwide torture regime — will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party’s control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens’ torture at American hands.
All of those efforts, culminating in yesterday’s entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade. Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.
As Glenn Greenwald notes, the Obama administration has blocked all attempts by detainees to sue torture facilitators with its generous use of the state secrets doctrine.
What that means is that the only thing preventing a future Republican president from using torture techniques is a flimsy, reversible executive order from the president himself, because no court has ever made a determination that the interrogation techniques themselves were illegal. Both the new Secretary of Defense Leon Panetta, and the new CIA chief David Petraeus, both once among the most prominent opponents of torture, have now expressed support for the idea of using coercive interrogations in “limited” circumstances. Torture became an issue of partisan dispute because Republicans rallied to the defense of their former president. What happens if the same thing happens with Obama supporters, and they feel the need to minimize the magnitude of what happened under Bush in order to defend the lack of accountability sought by their president?
The fact that so few people, if any, will face professional, civil or criminal sanction for torture bothers me far less than the possibility of torture itself becoming American policy again. Between the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability, that outcome seems quite possible.
Interesting piece on Salon that once again highlights how the Obama era, in terms of counterterrorism policy, has for the most part been one of continuation and intensification of the Bush-Cheney era, rather than the break it was promised to be.
At Bagram Air Base in Afghanistan, thousands of detainees are being held under conditions defying international law. And while at Guantanamo Bay the number of detainees is relatively stable, the inmate population at Bagram is growing. Because the Obama administration, like the Bush-Cheney administration before it, regards these detainees – people captured during the Afghanistan war or in the “war” on terror – as “illegal enemy combatants” or “unprivileged belligerents” (a legal category made up by the Bush administration that does not exist in international law), they are deprived of basic legal rights. That is, they have no idea what they are charged with, do not have access to proper legal defence, and so can be held indefinitely.
The article’s author Justin Elliott rightly calls this ‘the Gitmo no one talks about’. Hopefully it will after this article and the Human Rights First report it refers to, because it once again highlights how Obama in this respect is nothing different from his predecessors.
President Obama has presided over a threefold increase in the number of detainees being held at the controversial military detention center at Bagram Air Base, the Afghan cousin of the notorious prison at the Guantanamo Bay Naval Base in Cuba. It’s the latest piece of news that almost certainly would be getting more attention — especially from Democrats — if George W. Bush were still president.
There are currently more than 1,700 detainees at Bagram, up from over 600 at the end of the Bush administration.
The situation at Bagram, especially the legal process that determines whether detainees are released, is the subject of a new report by Human Rights First. It finds that the current system of hearings for detainees “falls short of the requirements of international law” because they are not given “an adequate opportunity to defend themselves against charges that they are collaborating with insurgents and present a threat to U.S. forces.” Human Rights First also argues that cases of unjustified imprisonment are damaging the broader war effort by undermining Afghans’ trust in the military.
What legal status do the detainees at Bagram have? Are they prisoners of war?
The U.S. doesn’t call any of the prisoners we keep in the context of the war on terror — including Afghanistan — “prisoners of war.” They’re called “unprivileged belligerents” which means that they don’t have POW status. That’s because we’re at war with organizations like the Taliban or al-Qaida rather than a country or official government. But these detainees are supposedly being held under the rules of armed conflict.
What does this mean in practice about what sort of legal process they face and what rights these detainees have?
It depends who you ask. There are no laws under the rules of war governing how you treat detainees in this kind of armed conflict. So the position of most other civilized nations, most European commissions and human rights bodies is that international human rights laws should apply. The U.S. government says that those laws don’t apply beyond its own borders, and therefore no laws apply.
Early on at Bagram, there were terrible abuses. There were reports of people being killed in custody and tortured. We believe that is not happening anymore. There is still something called the black jail at Bagram, what the government calls a “screening facility.” It’s called the black jail because there are no windows and no natural light, and no one knows what time of day it is. The conditions there are much worse than at the main prison. People who have been at the black jail complain of being strip-searched in humiliating ways, being subjected to extreme cold temperatures, lights on 24 hours a day, and not having a mattress. But still nothing as bad as the kind of torture that was reported early on.
You went to Afghanistan and attended some of the hearings for Bagram detainees. How does this all work and what did you find?
They are supposed to get a hearing on their detention after 60 days and then at six months and every six months after. The hearings sound good on paper but then when you actually attend them — I hate to use the cliché — it’s Kafkaesque. They’re not allowed to see much of the evidence against them because it’s classified. So a military person will stand up and read the charges — say that the detainee was found to be an IED maker. And the accused will say, “Well what is the evidence against me?” And the military won’t produce it because it’s classified. The accused does not get a lawyer; they get what’s called a personal representative. That’s a field-grade soldier who is assigned to represent a detainee — but they have no legal training beyond a 35-hour course. Many former detainees told me they did not trust their representatives, who are uniformed soldiers. And at least in the public sessions, we did not see the representatives ever challenge evidence. There are also classified sessions, where we of course don’t know what happens.
Wonderbaarlijk genoeg leidt de dood van Osama bin Laden er ineens toe dat in Nederland, in kranten en op televisie, de buitenlegale maatregelen van opeenvolgende Amerikaanse regeringen onderwerp van debat zijn. Onbemande vliegtuigjes, Guantánamo Bay, marteling, onbeperkte opsluiting; zaken waar we op deze blog alanderhalfjaaraandachtvoorproberentevragen (weliswaar in het Engels) worden ineens besproken op nationale tv.
Blijkbaar wordt, zodra het zo concreet wordt als de buitenrechtelijke executie van Osama bin Laden, het de Nederlanders opeens te gortig.
Mooi, natuurlijk, maar waar waren alle Nederlandse mainstream media, zoals de Volkskrant en het NRC, het afgelopen decennium? De afgelopen drie jaar in ieder geval vooral druk met het kritiekloos bewonderen van Obama, zonder erop te wijzen dat deze met amper enige wijziging het buitenlegale antiterreurbeleid van Bush en Cheney heeft voortgezet.
Mede debet aan deze nationale hausse van aandacht voor Amerikaanse buitenlegale praktijken is advocaat en internationaal strafrechtgeleerde Geert-Jan Knoops. Afgelopen maandag, toen het nieuws van Bin Laden’s verscheiden nog vers was en gans het Westen (nou ja, de VS) in juichstemming verkeerde, was Knoops de eerste die wees op het illegale karakter van deze actie. Aanvankelijk nog in een zijkolom, maar allengs uitgroeiend tot een van de belangrijkste stemmen in het debat.
Knoops mogen we dan ook wel kwalificeren als een koning. Zo was hij betrokken bij de verdediging van Salid Hamdan, de op Guantánamo Bay opgesloten ’chauffeur van Bin Laden’, wiens rechtszaak een van de belangrijkste werd in de strijd tussen de regering-Bush en het Hooggerechtshof over de rechten van gedetineerden. Knoops was ook de advocaat van Marco Kroon, en volgens de site van KRO’s Oog in oog ‘adviseerde hij zowel Saddam Hoessein als Barack Obama’ (wat dat inhoudt weet ik niet). Daarnaast bepleitte hij allerlei zaken voor de Joegoslavië- Rwanda- en Sierra Leone-tribunalen.
O ja, Knoops is ook bergbeklimmer en diepzeeduiker. En marinier.
In other words, een interessant Mensch om eens een uurtje naar te luisteren, zeker wanneer hij gehakt maakt van het Amerikaanse contraterreurbeleid van het afgelopen decennium, en het buitenlegale karakter daarvan. De Nederlandse Glenn Greenwald:
Yesterday, I expressed the hope that with the demise of Osama bin Laden, America could return to being the constitutional democracy with the rule of law that it was before 9/11.
Luckily (and of course), I’m not the only one who sees this as possibly the most important aspect of yesterday’s operation. Here’s probably the best commentary that I’ve read so far in the wake of Bin Laden’s death, by Peter Beinart of The Daily Beast. Beinart argues that now the figurehead of the 9/11 attacks is gone, it’s time to call an end to the so-called ‘war’ on terror. This doesn’t mean that counterterrorism policies should come to a halt! On the contrary, in the coming time period they should probably be increased to prevent retaliation. But it does mean that the ‘war’ on terrorism should cease to be the primary paradigm through which US (and Western) foreign policy operates.
Because let’s face it: the threat of radical islamist terrorism is not the biggest policy problem the West faces. It isn’t now, and it wasn’t after 9/11. If I’d to point at anything, I’d had to choose between the rise of China or the long-term budgetary and financial problems the US and the West are facing. But certainly not the threat of a bunch of medieval rag tag terrorists who, admittedly, can do short-term symbolic (and personal) damage, but do not pose any fundamental threat to the existence of our society in this form.
The terrorist incidents of 9/11 and those after that can, however, present long-term problems when executive powers choose to overreact, and thereby aim to fundamentally transform the structures of constitutional democracy and the rule of law. This is what happened in America under Bush-Cheney, where an emergency became the pretext for a global, unending, infinite ‘war’ on terror in which anything was allowed. That’s when you got ‘enemy combatants’, indefinite detention, torture and a Gulag archipel of ’black sites’ and Guantánamo Bay. By and large, this ‘legal architecture’ for combating terrorism – with the exception of torture – has been retained by Obama, who added drone attacks and the targeting of American citizens abroad of his own.
When a state of emergency ceases to be the exception and starts to be the norm, then you have a problem. Either it expands (and turns on citizens), or it becomes the baseline on which to build yet other ‘emergency’ measures. So let’s say the state of emergency started on 9/11 (I don’t agree, but let’s say it did); can we then now say that with the demise of Osama bin Laden, who apparently was so important that streets are filled with chanting people, the state of emergency has ended? Can we please do away with renditions, indefinite detention, Guantánamo Bay, illegal wiretapping, and so forth?
[We] have more to be grateful for than this one villain’s demise. We must give thanks for something broader: The war on terror is over. I don’t mean that there is no threat of further jihadist attack. In the short term, the threat may even rise. I don’t mean that we should abandon all efforts at tracking terrorist cells. Of course not. But the war on terror was a way of seeing the world, explicitly modeled on World War II and the Cold War. It suggested that the struggle against “radical Islam” or “Islamofascism” or “Islamic terrorism” should be the overarching goal of American foreign policy, the prism through which we see the world.
I remember how seductive that vision was in the aftermath of 9/11. It imposed order on the world and gave purpose to American power. But it was a mistake from the start. Even the Cold War was a dangerously overblown vision, which blinded American policymakers to the fact that much of what happened in, say, Vietnam or Angola, had little to do with Moscow or communism. But the war on terror was worse. It made East Asia an afterthought during a critical period in China’s rise; it allowed all manner of dictators to sell their repression in Washington, just as they had during the Cold War; it facilitated America’s descent into torture; it wildly exaggerated the ideological appeal of a jihadist-Salafist movement whose vision of society most Muslims find revolting.
Even before the U.S. killed bin Laden, the Arab Spring had already rendered him irrelevant. President Obama now has his best chance since taking office to acknowledge some simple, long-overdue truths. Terrorism does not represent the greatest threat to American security; debt does, and our anti-terror efforts are exacerbating the problem. We do not face, as we did in the 1930s, a totalitarian foe with global ideological appeal. We face competitors who, in varying ways, have imported aspects of our democratic capitalist ideology, and are beating us at our own game.
So now what? Legally speaking, there are two broad lessons to derive from the Obama administration’s latest salvo in the war on terror. One is that it shows the need to continue operating outside legal norms indefinitely. The other is that it allows us to declare a symbolic victory over terrorism and return once more to the pre-9/11 regime in which the rule of law is inviolate.
About all we can say with certainty is this: We tortured. We live in a world in which we must contend with information obtained by torture. We now need to decide whether we want to continue to live that way. Writers from ideological backgrounds as diverse as Matt Yglesias and Ross Douthat argue that it is time to return to the paradigm abandoned after 9/11. Let’s put the 9/11 attacks and the existential threat it created behind us. With Bin Laden’s death, let’s simply agree that the objectives of the Bush administration’s massive anti-terror campaign have finally been achieved, and that the time for extra-legal, extra-judicial government programs—from torture, to illegal surveillance, to indefinite detention, to secret trials, to nontrials, to the prison camp at Guantanamo Bay—has now passed. There will be no better marker for the end of this era. There will be no better time to inform the world that our flirtation with a system of shadow-laws was merely situational and that the situation now is over.
But for those who would argue for a continuation of the lawlessness of the post-9/11 legal era, the question is now this: When does it end? If the death of Bin Laden doesn’t signal the end of the 9/11 legal regime, what does? Do we continue to avail ourselves of these illegal methods until every last enemy of America is dead? If torture produced information about the men hiding Bin Laden, does that give America license to torture anyone, anywhere? If the prison camp at Guantanamo is the only reason we were able to obtain intelligence about Bin Laden’s protectors, shouldn’t Guantanamo be expanded and kept open forever? Shouldn’t we start shipping Americans there?
The “war on terror” language was always metaphorical, I realize, but it unloosed a very real Pandora’s box of injustice on a nation that prides itself on its notions of fairness. That makes the highly symbolic death of Bin Laden an apt time—perhaps the last apt time—to ask whether this state of affairs is to be temporary or permanent. If President Obama truly believes, as he said last night, that justice has finally been done, he should use this opportunity to restore the central role of the rule of law in achieving justice in the future.
In the gargantuan media frenzy surrounding an event like this, there’s only so much a tiny blog can add.
First off, I must say I’m against the death panelty and against this kind of ‘rogue justice’. Like the Dutch Minister of Defence said, I’d been better if Bin Laden had been captured and tried in a fair trial. So, I can’t really engage in the kind of gung-ho victoriousness that I’m seeing now in the news and on my Facebook feed. But congratulations, I guess, to all those who lost friends and family on 9/11; and of course Bin Laden had it coming.
Having said that, I wonder what the impact of this event is, and to what extent it changes anything. It might have some impact on Obama’s 2012 re-election chances, but I wouldn’t be surprised if the current glow dissipates pretty soon, and politics goes back to business as usual. Whether the death of Bin Laden has any effect on global terrorism as a phenomenon, other than a symbolic one, I very much doubt.
What I would hope is that now America as a constitutional democracy with the rule of law could return to its pre-9/11 state of being. As Joan Walsh on Salon.com says:
I also wish this achievement could mean we get our country back, the one before the Patriot Act, before FISA, before rendition and torture and Guantanamo; before we began giving up the freedom and belief in due process that makes us Americans, out of our fear of totalitarians like bin Laden. It won’t happen overnight, but I’m going to choose to think this could be a first step.
Because that would be the real victory in the struggle against terrorism: closing Guantánamo Bay!
- Edit: This observation from the NYT, by the way, is also very true. The political uprisings of the Arab Spring had already delegitimized Al Qaeda, and this is a (symbolic) double blow.
Analysts said Bin Laden’s death amounted to a double blow for Al Qaeda, after its sermons of anti-Western violence seemed to be rendered irrelevant by the wave of political upheaval rolling through the Arab world.
“It comes at a time when Al Qaeda’s narrative is already very much in doubt in the Arab world,” said Martin S. Indyk, vice president and director of foreign policy at the Brookings Institution. “Its narrative was that violence was the way to redeem Arab honor and dignity. But Osama bin Laden and his violence didn’t succeed in unseating anybody.
Obama’s remarks, though, were very decent and modest. Read them in full here. I’m very happy that he didn’t talk about “war” too much other than in the contexts of Iraq and Afghanistan (imagine how Bush or a fool like John McCain would’ve been standing there), and this I thought was very good:
As we do, we must also reaffirm that the United States is not –- and never will be -– at war with Islam. I’ve made clear, just as President Bush did shortly after 9/11, that our war is not against Islam. Bin Laden was not a Muslim leader; he was a mass murderer of Muslims. Indeed, al Qaeda has slaughtered scores of Muslims in many countries, including our own. So his demise should be welcomed by all who believe in peace and human dignity.
Despite all the rightful criticism against Obama concerning the rule of law, I think we can be very happy that this guy is the president of the United States.
I also kinda like, as a political thing, that Obama already announced in 2008 that he would re-direct American efforts from full-scale wars in Iraq and Afghanistan to taking out Osama bin Laden - like in this presidential debate with John McCain, who actually protested that notion. And that’s what he did. Of course, the US is still in both countries and in a third one, but still.
Well that’s pretty much it. Check the NYT here, and the 7-page obituary of Bin Laden here. HuffPost here. Andrew Sullivan here (although you may not want to read him if you’re not into dramatic wallowing). Here’s some cool stuff:
Marc Ambinder over at The Atlantic has put together a ‘reelection report card’ for Obama. It seems to be a very realistic and empirical info-based assessment of Obama’s prospects, strenghts and weaknesses going into the 2012 presidential election campaign.
I don’t know, however, to which extent this assessment should be seen as complete – taking in all possible sides and angles. I like it for its conciseness, though, so here is an excerpt.
Political Identity: C. Who is this guy, and where does he want to take the country? Obama’s hope-and-change platform in 2008 allowed people to fill in whatever details they wanted. This strategy served a little-known candidate, but it’s untenable for an incumbent. Americans know that Obama has a vision–70 percent do, according to an April 9-10 CNN/Opinion Research poll of 824 adults.
Separate from the birther constellation is a cluster of beliefs with fairly high magnitude. Obama’s style is conciliatory and concessional. Even liberals don’t seem to know precisely where Obama wants to lead them. It’s not a question of goals; it’s a question of guts. Where will he fight? Perhaps his new deficit-cutting plan will show the way. This grade, incidentally, is given without reference to his potential opponents. Throw a Republican with an identity crisis into this mix and Obama’s grade rises.
Campaign Team: A. Obama’s reelection team is experienced, trusted, and not riven by the usual infighting that besets campaigns. It’s true that they’re cocky, but after any number of near-death experiences with health care and other issues, their hubris is a bit more muted. It must here be noted that several potential GOP opponents — notably Tim Pawlenty and Mitt Romney — are putting together A-list campaign teams too.
Leadership: C. Americans are not sure about Obama’s leadership skills.
One version of the case posits that Obama has spent way too much time blaming predecessors even as he continued Bush policies, from TARP to Guantanamo Bay. His leadership skills tie into his political identity. He seems rudderless at times. His advisers will say that Obama wants to fix problems and is a pragmatist, and that external events have made it all but impossible to chart a straight course and follow it. That may be true, but the challenge is to convince the American people that this style of governing is the right one.
Attributes and Values: A. Americans like Obama; they trust that he wants the best for them–even if they don’t quite know what that is; they see him as honest, on their side, and likable (see Gallup). This will be a significant asset. It helped carry President Bush to reelection in 2004.
Organization: A. Regardless of whether there’s a drop-off in volunteer intensity early on, there’s no question that Obama’s reelection operation will be formidable and well-funded enough to compete with whatever Republicans are able to construct. This includes outside groups who will try to chip away at Obama in battleground states. Democrats will have well-financed vehicles of their own.
Position Relative to His Opposition: B. The Republican field is unleavened at best. The all-but-declared Republican candidates (Mitt Romney, Tim Pawlenty) all have significant, if resolvable, flaws. Some of those thought to be considering the race — from Rep. Michele Bachmann, R-Minn., to former Alaska Gov. Sarah Palin to Donald Trump — threaten to pull the GOP off its rails. Dark-horse challenges could make the field rougher, especially Gov. Mitch Daniels of Indiana.
Foreign issues: B. He continues the Bush war in Afghanistan and drew down the one in Iraq while joining one against Libya. There’s no crowning achievement like a Middle East peace deal. Guantanamo Bay remains open. Independents liked Obama because he promised to repair America’s relationship with the world and raise its standing. He has done that. He will remind independents of this. It will probably work. Obama’s proposed defense cuts are going to be troubling to voters in the industrial Midwest and the Intermountain West.
Among Democrats, Obama’s job approval is about 5 percentage points away from where he needs to be. Three-fourths of self-identified liberals approve of Obama’s performance to date. He needs these numbers to be higher. Liberal white Democrats and African-Americans are solid Obama supporters. But Obama’s approval rating has dropped significantly among Latino voters (73 percent when he was elected; 54 percent now, according to Gallup), and slightly among younger voters (ages 18 to 29) who were hardest hit by the economic sluggishness. While 55 percent among this group is stronger than it was half a year ago, according to a huge Institute of Politics poll released last week, it needs to be higher. Still, in the absence of a Republican foil, these are generally sufficient numbers for the president. At this point in 1995, more than 4 in 10 Democrats wanted a primary challenger for Bill Clinton; fewer than 2 in 10 do for Obama.
If you wanna know more about Donald Trump’s election prospects, read here.
Alex Knapp at Outside the Beltway captures my feelings exactly when he writes about the depressed feeling he gets from the ‘mainstreaming of brutality’ that is going on in the US. Now I’m not surprised about that stuff coming from Republicans; what upsets me is how Obama – Obama, of all people – has made bipartisan and acceptable that people can be held indefinitely in prisons without a trial; that American citizens can get shot abroad without a trial if they are suspected of terrorism; and that whistleblowers get treated like the worst criminals. It runs against everything that America once stood for. And what was that thing about the audacity of hope again?
I’ve been trying for the past couple weeks to write about Bradley Manning, but I can’t. It makes me sick to my stomach. The whole trend of brutality and betrayal of American ideals over the past decade makes me sick to my stomach.
We have gone from being the first country that established the principle that prisoners of war should be treated respectfully to a country that operates black sites and sends prisoners to other countries to be tortured–when we don’t torture them ourselves.
In the American Revolution, the number one cause of death for American soldiers was maltreatment and disease in British POW camps. In the Civil War, Andersonville was a cause of national outrage. In the early 20th century, the United States emphatically supported the adoption of the Geneva Conventions. In World War II, German soldiers happily surrendered to Americans in the West, knowing they’d be well treated. But in the East, they fought the Russians to the last man because they knew they wouldn’t be.
Now, in the 21st century, we send robot planes to bomb civilians in a country that’s ostensibly an ally. We have prisons where people are routinely denied basic essentials, denied due process, are maltreated and tortured. We reverse decades of tradition and not only have legalized assassination, but have legalized assassination of United States citizens.
And there’s no outrage on Main Street. There’s no outrage in Washington. There’s only outrage on the internet. And half the internet rage is coming not from the acts themselves but rather partisan bullshit surrounding them. (“You only hate torture when Bush does it!” “You only hate it when we do it to white people!” “Nuh-uh!” “Uh-huh!”)
The first time I voted in a Presidential election, in 2000 (for Harry Browne), no part of my consideration of any of the candidates had to do with whether they wished to torture people or assassinate American citizens. It didn’t have to be, because it wouldn’t cross anybody’s mind to have a position on it. Americans don’t torture. That was our position. We were a shining city on a hill. You can’t torture people in the basement if you’re trying to set an example of decency to the world.
In 2004, this became a partial voting issue, as John Kerry oh so politely pointed out that maybe throwing people into a prison might be a little wrong? Maybe? But since at the time Kerry seemed to be supporting whichever way the wind was blowing, it didn’t seem to matter as much. (In the end, I voted for “None of the Above.”)
Then in 2008, one major reason why I voted for Barack Obama was because he forcefully claimed to be opposed to such policies. And I was mad that that was actually a voting issue for me, because you’d think that not torturing people is a moral no-brainer.
But, as it turned out, Obama lied.
Now, as I look to vote in 2012, I realize that just like in 2000, no part of my consideration for any of the candidates will involve their positions on torture, war crimes, secret prisons, renditions, etc.
Because both candidates will be in favor. Without apology.
And so Barack Obama finally commits to the creation of a parallel justice system – one in which the threshold of evidence is lower, people can be preventively detained or have no trial at all (indefinitely), and that is run by military commissions. On Cuba, a satellite piece of land outside the US mainland and its ordinary criminal justice system. Even though as a presidential candidate, the darling of civil libertarians, liberals and Democrats, Obama said to vehemently oppose the Bush-Cheney counterterrorism policies that had resulted in the prison camp at Guantánamo Bay, the military commissions, and indefinite preventive detention for terrorism suspects.
If Obama taught me one thing, it is that you should never, ever trust politicians. That’s the lesson that I guess is to be learnt from this guy’s election and presidency.
But anyway. Indefinite detention is now a fact. Procedurally, some things have of course been improved since Bush-Cheney. Detainees on trial now have legal rights which come closer to those in the ordinary justice system; detainees who will not be tried will, it is promised, within a year receive status reviews of the level of ‘threat’ they impose. Obama’s executive order lifting his two-year ban on military trials requires compliance with the Geneva Conventions and the Convention Against Torture. Also – importantly – this order only covers those currently held, and does not extent to any possible future detainees.
But otherwise, Gitmo will not be closed, 9/11 plotters will not get a criminal trial (which would have shown the world what a law-honoring, justice-minded country the US would be), and the way is open for any future Republican president to expand upon this parallel justice system. Yes we can.
President Obama on Monday reversed his two-year-old order halting new military charges against detainees at Guantánamo Bay, Cuba, permitting military trials to resume with revamped procedures but implicitly admitting the failure of his pledge to close the prison camp.
Mr. Obama said in a statement that he remained committed to closing Guantánamo someday and to charging some terrorism suspects in civilian criminal courts. But Congress has blocked the transfer of prisoners from Guantánamo to the United States for trial, frustrating the administration’s plan to hold civilian trials for Khalid Shaikh Mohammed, the self-professed chief plotter of the Sept. 11 attacks, and others accused of terrorism.
Officials declined to say whether Mr. Mohammed would be scheduled for a military commission or would await a trial in federal court if Congress lifts its prohibition.
Separately, for detainees who will not get trials, Mr. Obama set out new rules in an executive order Monday requiring a review of their status within a year and every three years after that to determine whether they remain a threat, should be scheduled for a military trial or should be released. The order also requires compliance with the Geneva Conventions and the international treaty that bans torture and inhumane treatment.
Civil liberties advocates, who have long been critical of Guantánamo, expressed disappointment that the military system remained in place more than two years after Mr. Obama took office.
“This is a step down the road toward institutionalizing a preventive-detention regime,” said Elisa Massimino, president of Human Rights First. “People in the Mideast are looking to establish new rules for their own societies, and this sends a mixed message at best.”
Glenn Greenwald at Salon.com is, as always, indispensable. He especially debunks the idea, also found in the NYT article above, that it is Congress, not Obama, that drives these policies:
It is true that Congress — with the overwhelming support of both parties — has enacted several measures making it much more difficult, indeed impossible, to transfer Guantanamo detainees into the U.S. But long before that ever happened, Obama made clear that he wanted to continue the twin defining pillars of the Bush detention regime: namely, (1) indefinite, charge-free detention and (2) military commissions (for those lucky enough to be charged with something). Obama never had a plan for “closing Guantanamo” in any meaningful sense; the most he sought to do was to move it a few thousand miles north to Illinois, where its defining injustices would endure.
The preservation of the crux of the Bush detention scheme was advocated by Obama long before Congress’ ban on transferring detainees to the U.S. It was in May, 2009 — a mere five months after his inauguration — that Obama stood up in front of the U.S. Constitution at the National Archives and demanded a new law of “preventive detention” to empower him to imprison people without charges: a plan the New York Times said “would be a departure from the way this country sees itself.” It was the same month that the administration announced it intended to continue to deny many detainees trials, instead preserving the military commissions scheme, albeit with modifications. And the first — and only — Obama plan for “closing Guantanamo” came in December, 2009, and it entailed nothing more than transferring the camp to a supermax prison in Thompson, Illinois, while preserving its key ingredients, prompting the name “Gitmo North.”
None of this was even arguably necessitated by Congressional action. To the contrary, almost all of it took place before Congress did anything. It was Barack Obama’s position — not that of Congress — that detainees could and should be denied trials, that our court system was inadequate and inappropriate to try them, and that he possessed the unilateral, unrestrained power under the “laws of war” to order them imprisoned for years, even indefinitely, without bothering to charge them with a crime and without any review by the judiciary, in some cases without even the right of habeas review(to see why claims of such “law of war” detention power are so baseless, see the points here, especially point 5).
In other words, Obama — for reasons having nothing to do with Congress — worked from the start to preserve the crux of the Bush/Cheney detention regime.
OK. So what now? First, Assange may win the trial in Sweden. That’s perfectly possibly. Second, I honestly doubt he’d be extradited to the US from a EU country. That’s because on the one hand, there have been no charges filed against Assange in the US yet (as it’s not even sure he committed any ‘crime’ that’s currently in the books), and on the other hand, if there will be, there are of course serious concerns about his life and health.
The United States today ranks among the developmental countries in the world when it comes to treatment of prisoners (especially political prisoners, like Assange would be); in that respect, the US is on par with Libya and China. Just consider the treatment of detainees on Guantánamo Bay, and that of the WikiLeaks whistleblower Bradley Manning. These people are being deprived of basic human rights, being solitarily confined for months or years on end (which amounts to torture). They come out of it scarred for life. So, if European norms and values with respect to the rule of law mean anything at all, there will be no extradition to a country like the United States.
WikiLeaks founder Julian Assange is to be extradited to Sweden to face allegations of rape and sexual assault. Assange will appeal, his legal team confirmed. If this is unsuccessful, he will be extradited to Sweden in 10 days.
Assange has been fighting extradition since he was arrested and bailed in December. He has consistently denied the allegations, made by two women in August last year.
At a two-day hearing earlier this month, his legal team argued that Assange would not receive a fair trial in Sweden. They said the European arrest warrant (EAW) issued by Sweden was invalid because the Australian had not been charged with any offence and that the alleged assaults would not be legitimate extraditable offences.
Assange fears that an extradition to Sweden would make it easier for Washington to extradite him to the US on possible charges relating to the release by WikiLeaks of leaked US embassy cables.
If this was to happen, Sweden would have to ask permission from the UK for the onward extradition. No such charges have been laid, though the website’s activities are under investigation in the US.
The policy of indefinitely detaining terrorism suspects – brought together under the made-up ‘legal’ category of ‘illegal enemy combatants’ – in a satellite area of the United States, the prison camp at Guántanamo Bay, was a hallmark of the Bush-Cheney administration’s ‘war’ on terrorism. It has been kept in place by President Obama.
Now, after 9 years of detention in a cage, a prisoner, Awal Gul, has died of heart malfunction at age 48. He was one of 173 still in detention at Gitmo, and of 50 not considered for a trial or release. The Supreme Court in the 2008 Boumediene v. Bush case confirmed the right of detainees to a habeas corpus hearing in a federal court. Gul filed his habeas petition in March 2010, 11 months ago, but the judge, for some reason, never got to reviewing it. Now the guy’s dead.
While the U.S. claims he was a Taliban commander, Gul has long insisted that he quit the Taliban a year before the 9/11 attack because, as his lawyer put it, “he was disgusted by the Taliban’s growing penchant for corruption and abuse.”
This episode illustrates that the U.S. Government’s detention policy — still — amounts to imposing life sentences on people without bothering to prove they did anything wrong.
This episode also demonstrates the absurdity of those who claim that President Obama has been oh-so-eagerly trying to close Guantanamo only to be thwarted by a recalcitrant Congress. The Obama administration has sought to “close” the camp only in the most meaningless sense of that word: by moving its defining injustice — indefinite, due-process-free detention — a few thousand miles north onto U.S. soil. But the crux of the Guantanamo travesty — indefinite detention — is something the Obama administration has long planned to preserve, and that has nothing to do with what Congress has or has not done. Indeed, Gul was one of the 50 detainees designated by Obama for that repressive measure. Thus, had Gul survived, the Obama administration would have sought to keep him imprisoned indefinitely without any pretense of charging him with a crime – neither in a military commission nor a real court. Instead, they would have simply continued the Bush/Cheney policy of imprisoning him indefinitely without any charges.
Gul had filed a habeas petition and it was fully argued before a federal court back in March — 11 months ago. The federal judge never got around to issuing a ruling.
Gul’s death — and what turned out to be his due-process-free life sentence — is an important reminder of the heinous detention policies of the U.S.: not as a matter of the Bush/Cheney past, but very much the current U.S. posture as well. The only difference is that there is no more partisan gain to be squeezed from the controversy, so it has blissfully disappeared into the harmonious dead zone of bipartisan consensus.
WikiLeaks is a gift that keeps on giving. Just by accident – I was looking for a document that revealed that the Netherlands, together with Germany and Italy, proposed to remove American nuclear weapons from its soil – I stumbled on this report of a meeting between John Bellinger (above), legal advisor of then-State Secretary Condoleezza Rice, and a couple of important European counterterrorism figures, back in 2006. These include John Cooper, Director-General for Common Foreign and Security Policy at the EU Council Secretariat, and Gijs de Vries, EU Coordinator for the Fight against Terrorism.
The report reveals nothing new, but it does provide a great summary of the legal (or quasi-legal) architecture of the Bush-Cheney War on Terror. On the meeting, Bellinger tries to explain this legal architecture – why suspected terrorists can be held indefinitely at Guantánamo, how extraordinary renditions can be justified, why the Geneva Conventions don’t apply – and tries to convince his European counterparts of their appropriateness. I was very relieved when reading the reactions of the Europeans at the table: very critical, and not very convinced at all.
So if you’re interested in how the Bush administration, rather candidly I must say, defended its treatment of terrorism suspects abroad, and how well it fared in this case in Europe, read on.
Secstate Legal Adviser John Bellinger met with a comprehensive array of EU interlocutors in Brussels on February 7-8 to discuss U.S. views on the legal framework for the war on terrorism. He stressed that U.S. decisions on how to deal with an unprecedented global terrorist threat had been made after serious consideration of all legal and political options, and that European officials must publicly underline U.S. EU solidarity in the fight against terror. On Guantanamo detainees and Al Qaeda, Bellinger argued that the U.S. was and is acting in the context of a new form of international armed conflict, and that therefore, while the Geneva Conventions do not fit this new situation well, the rules of war provide a more appropriate framework than domestic criminal law. He discussed European concerns about the treatment of detainees. Bellinger also argued that rendition is a vital tool against terror. Finally, he urged the EU not to support a Cuban resolution at the UN Human Rights Commission on Guantanamo. The EU response to the visit was for the most part extremely positive, with the Legal Adviser of the Austrian EU presidency underlining that ”the fight against terror is our (shared) struggle.” Europeans, however, remain concerned about protection issues.
Note how the Bush-Cheney administration reasoned in terms of a “new paradigm”: the idea that the War on Terror is not a metaphorical construct, but an actual war, an international armed conflict, to which the rules of war apply. Yet, the rules of war according to Bush-Cheney only apply selectively, to the extent that the U.S. President deems fit. The Geneva Conventions and the Torture Convention, after all, to them do not apply to terror suspects.
Here we see more of this:
Bellinger stressed that the situation in which the U.S. and its allies find themselves is unprecedented –faced with thousands of Al Qaeda and associated terrorists around the globe whose goal is to inflict mass casualties on innocent civilians by any means possible. The legal frameworks that are readily available, the Geneva Conventions or domestic criminal law, do not fit this unprecedented situation well.
The U.S. believes that the continuing struggle against Al Qaeda remains a legal state of international armed conflict.
Al Qaeda is not the same as domestic European terrorist groups like the IRA or RAF because it is global and operates outside the U.S. and across borders. It is in effect a new manifestation on the battlefield, that of “armies of terrorists.” Conceptually, this is a military conflict, not a police action to round up criminals.
Yet even though this is apparently an international armed conflict, the Geneva Conventions to the U.S. do not apply. Al Qaeda is not a ‘High Contracting Party’ to the Conventions, they are not soldiers wearing uniforms, and neither are they ‘protected persons’ (civilians caught up in a conflict). So what are they then?
If not covered as POWs or protected persons, what, then, is the status of Al Qaeda and Taliban combatants? (…) [They] are best defined as unlawful combatants who do not have a right to any protections under the Geneva Conventions.
And this, then, is a new category of people that can be held indefinitely, have no right to a hearing in court, and can be tortured and extradited at will. Of course the Bush-Cheney administration and Mr. Bellinger ignored completely that large parts of the Geneva Conventions, and the Torture Convention, are simply common law – they apply regardless of the state of conflict or the participants in it. Each person in the world is free from being detained indefinitely without recourse to a legal court, and free from torture.
Yet the Americans apply international law only selectively, to the extent to which “military necessity” allows it. And what military necessity is, is of course to the unreviewable discretion of the U.S. President. This is the war paradigm reasoning again.
Accordingly, to clarify U.S. policy towards detainees President Bush issued a public directive on February 7, 2002, titled “Humane Treatment of Al Qaeda and Taliban Detainees.” This directive orders that all detainees under the control of the Armed Forces be treated humanely and, to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions. In addition, the U.S. remains bound by, and committed to, the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. This includes Article 4, which prohibits torture, and Article 3, which prohibits transfers of persons to countries where there is substantial likelihood that they will be tortured. Article 3 is applied on a case-by-case basis.
Bellinger however does address the obvious question: if detainees can be held for the duration of the “war”, and if the War on Terror is only over when America declares it over (which willl, probably, never occur), does that mean that people can be held forever? Why, yes, they can:
Can detainees be held indefinitely? What if some are innocent? The U.S. recognizes that these are troubling questions, but does not believe such questions could justify a decision not to detain people who represent a danger to American citizens. To deal with this problem at Guantanamo, the U.S. has created an annual Administrative Review Board process to determine, for each individual detainee, whether that detainee should still be considered as in a state of war with the U.S.
The question has also been raised as to the possible innocence of Guantanamo detainees. As the Geneva Conventions dictate, if there is any doubt about whether or not an individual is a POW, there must be an Article 5 tribunal. Since Taliban and Al Qaeda fighters clearly did not meet the conditions necessary to be granted POW status, the President decided that Article 5 tribunals were not necessary.
So, in a twisted rendering of the language of international law, individuals can be determined to be “in a state of war” with the U.S., whereas status determination tribunals for terror suspects need not be established, as there is no doubt as to their status: they are terrorists.
Bellinger than goes on to the address the European concern that people have been snatched from the street by the CIA, and transported to Guantánamo, or secret “black sites” that we don’t even know about. Although it has by now been confirmed that people (and sometimes innocent people) have been abducted by the CIA, back in 2006 it could still be denied. He also chooses not to go into CIA flights:
Bellinger sought to dispel allegations that hundreds of people had been kidnapped from European streets. He pointed out that there is no evidence for such allegations, and that the United States respects the sovereignty of European governments. On renditions, CIA flights, and other intelligence operations, the U.S. will not confirm or deny specific allegations, in order not to compromise the confidentiality of intelligence operations as such.
After that, Bellinger tries to bully the Europeans into not supporting a motion by Cuba against American actions at Guantánamo in the U.N. Human Rights Commission:
Some EU interlocutors expressed concern that some EU member states would support a Cuban resolution against U.S. actions in Guantanamo at the upcoming UN Human Rights Commission, that might be modeled after a European Parliament resolution on the subject. Bellinger warned that European support for a Guanatanamo resolution would be a serious setback to U.S.-EU cooperation against terrorism, and give the unacceptable impression that the EU was aligned with Cuba against the U.S.
Soo… Having come at the end of his expose, how did the Europeans at the table react?
Although Bellinger tries to cover it up in diplomatic language, and calls the paragraph “European Reactions Positive for U.S.”, I’d say it’s pretty clear that they were critical and not convinced. Which, by the way, creates the question why Bellinger would report that European reactions were positive. Maybe to make himself look good back home?
By and large, Bellinger’s European interlocutors responded very positively to his visit. Their questions were many and varied, and all of the meetings were marked by vigorous but constructive discussion. It is clear that many Europeans continue to believe that Article 3 of the Geneva Conventions can be applied to enemy combatants, and still afford the United States the flexibility it seeks. It is also apparent that lingering concerns (fed by negative public perceptions) remain about the treatment of detainees, and protection against wrongful detentions. Some governments remain focused on renditions, and the possibility that there will be negative revelations that impact on them directly.
That said, the visit was very helpful in beginning to dispel European misunderstandings and misgivings about our pursuit of the war on terror. Continued engagement on these issues is critical in the coming months to persuade EU governments to stand more firmly and publicly in the face of their public’s concerns and suspicion regarding Guantanamo, renditions, and the legality of U.S. actions against Al Qaeda. The Austrian Chair of the COJUR meeting, Ferdinand Trauttmansdorf, concluded the meeting with the following message: “We leave this discussion with the notion that America is carefully considering these difficult questions in good faith.” He said also that the fight against terror was a burden shared by the EU, and that the U.S. has as much of a right to ask questions of the EU, as the EU does of the U.S. On the upcoming Human Rights Commission, urgent consultations with the EU will be necessary to avert the possibility of EU support for a Cuban Guantanamo resolution.
Note the quasi-objective and kinda manipulative tone that seems to be common to confidential diplomatic memos (we saw it earlier in the secret CIA document on the manipulation of European public opinion on the war in Afghanistan). Lingering concerns are “fed by negative public perceptions”. The meeting was helpful in beginning to “dispel” European “misunderstandings” and “misgivings” about the war on terror. “Continued engagement” by the U.S. is necessary to push European governments in line vis-a-vis their publics critical of Guantánamo Bay and illegal CIA flights.
Finally, I found it very interesting that the U.S. administration was so worried that the EU would support a Cuban resolution in the U.N. on Guantánamo Bay. Does anyone know how that played out?
In conclusion, what do we learn from scrutiny of this document? Well, as I said, nothing really new. It only confirms again the extent to which the Bush-Cheney administration reasoned from a “war paradigm”: the idea that the fight against Al Qaeda is a new kind of actual international armed conflict, to which the rules of war however only apply limitedly. This reasoning allows them to treat terror suspects in utter disregard of international law. Moreover, since an end to the ”War” on Terror is not in sight, since it is not limited to boundaries, and since it is ultimately to the President’s unreviewable discretion whether military necessity exists, this makes the U.S. kind of a universal imperial policeman, with nothing that can be put in its way. Is that clear-cut authoritarianism? I’d say it is. Happily, at least also behind the scenes, some people stood up.
A website, popular on Facebook, summarizing the legislative achievements of Obama and the Democrats. Good to counterbalance the view that Obama has achieved nothing so far.
But to spoil the fun: in the area of civil rights, Obama has contrary to all his campaign promises achieved nothing so far. Instead, he has perpetuated Bush-Cheney policies or made them worse. Gitmo’s still open, military commissions are running, detainees are being indefinitely held, American citizens suspected of terrorism are targeted for killing abroad, the state secrets doctrine is being invoked, renditions to torture-countries continue, the Patriot Act is extended, and I could go on. Also on the issue of gay rights, Obama’s been really bad.
In another high mark of the presidency of Barack H. Obama, today the first trial of a child soldier in modern U.S. history will commence at Guantánamo Bay. Well done, President Obama, thank you very much! The suspect, the Canadian Omar Khadr, was captured in Afghanistan in 2002 when he was 15 years old. He is suspected of killing an American soldier with a grenade.
What’s more, he will be tried in a military commission: a remnant of the Bush administration’s attempt to try terrorist suspects in quasi-legal military courts with lower standards than the normal federal civilian courts, that has been kept by Obama. So, Khadr also has the honor of being the first detainee to be tried in a military commission under the presidency of Barack Obama.
The Huffington Post has a harrowing, eye-opening story about the details of this case. First of all, Khadr was taken to Afghanistan by his father, an alleged Al Qaeda financier, when he was only 9 years old; according to a report by a Canadian intelligence agency, based on interrogations, he viewed Al Qaeda “through the eyes of a child”. Secondly, Khadr has, according to testimony by former interrogators at the pretrial hearings, been molested and tortured (yelled at, things thrown at, kept awake, threatened with gang rape and death) by U.S. interrogators in Bagram and Guantánamo to extract a confession; before that, by the way, when he was captured, he was already shot twice in the back, blinded in one eye and damaged in his face due to shrapnel. Thirdly, military commission judge Col. Pat Parrish has ruled that his confessions, despite being obtained by molestation, can actually serve as evidence in his trial.
Then there’s another thing. Even if Khadr had killed the soldier, that would have been a normal act of war had he been a soldier himself. Because he’s a civilian, however, it constitutes a criminal act that can be prosecuted in a normal court (like more than 400 terror suspects have been in the past eight years). Yet currently he’s being prosecuted for “war crimes”, because he belongs to a special category of persons made up by the Bush administration and retained by the Obama administration (without the name): the “enemy combatant“, who can be indefinitely detained and must be tried by a specially created quasi-legal military tribunal.
So I think it’s appropriate here to cite the closing lines of the HuffPost article:
It will also create a lasting legacy for the Obama administration. “Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier,” Jackson said.
Somehow that doesn’t seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.
Looking back at the 2008 Obama campaign, one might distinguish, among others, two narratives that formed the core appeal of his candicacy: one, that he promoted himself as a “post-partisan” and a “pragmatist”, rather than the type of ideology-fueled politician that at that time was residing in the White House; second, that he promoted himself as someone with a very clear point of view on issues of the rule of law and civil rights. Obama, more so than other candidates such as Hillary Clinton, was very clear about his opposition to Guantánamo Bay, torture, and infringements on civil rights that had become the hallmark of the Bush-Cheney presidency.
Yet, today, Obama has clearly failed to live up to his campaign promises in the latter regard. Guantánamo is still open, a terror suspects’ assassination program for American citizens has been set up, civilian trials for terror suspects are cancelled, habeas corpus rights are not restored, the state secrets doctrine is being invoked, etc. The Obama administration in this area is Bush-lite, in every respect. And all the more frustrating is that the President doesn’t seem to care.
So this might be interpreted as the “pragmatist” narrative having won from the “moral” narrative… As the authors below do. Although I’d say that “pragmatism”, just like “centrism”, is a quasi-neutral term meant to hide very concrete positions, just like Obama is taking. Positions of which “liberals” and “progressives” (or, people who care about the rule of law) have every right to be disappointed about.
Andy Bacevich at The New Republic, first, voices a very to the point criticism of Obama’s presidency so far:
Obama’s supporters were counting on him to bring to the White House an enlightened moral sensibility: He would govern differently not only because he was smarter than his predecessor but because he responded to a different—and truer—inner compass. Events have demolished such expectations. Today, when they look at Washington, Americans see a cool, dispassionate, calculating president whose administration lacks a moral core.
The case for pragmatism, especially after the ideology-drenched years of Bush and Cheney, is a powerful one. On issues like the bank bailout (wildly successful) or health insurance reform (a messy but important advance) or balancing short term demand with long term austerity, we need pragmatism. But there are some areas where that instinct can come to seem unwise.
Sending young men to risk their lives is one of them; refusing to live up to core Geneva Conventions requirements – like investigating and, if appropriate, prosecuting those guilty of war crimes is another; dittocivilrights, where pragmatic politics is never enough.