President Barack Obama issued four executive orders Thursday, including one requiring that the U.S. military detention facility at Guantanamo Bay be closed within a year. It was a widely anticipated move. The question remains, however, what to do about the war crimes committed at the facility. In the meantime, the Republicans are demanding that Holder promise not to investigate war crimes as a condition for their votes for confirmation.
The four orders ban torture (though it is already banned) and reverse Bush detention policies. A third order delays the trial of Ali al-Marri, a legal U.S. resident who has been contesting his detention for more than five years as an enemy combatant in a military brig without a charge.
The closing of Gitmo should not be treated as the priority for civil libertarians. It is simply a place. It is what happened there that demands action. We did not deal with Richard Nixon’s crimes by bulldozing the Watergate building. We prosecuted the crimes committed inside the building. The same should be true with Gitmo.
In the meantime, the Republicans are once again embracing torture as a platform for their party — demanding that Holder promise not to investigate or prosecution war crimes committed by President Bush and his administration. Holder will be called back before the Committee to answer these questions. Ironically, it puts the Obama camp in a terrible position because they have been quietly trying to scuttle any investigation of war crimes. Now, it will look like they caved to GOP pressure. Perhaps, this raw effort to manipulate the justice system will awaken Holder to the demands of the law. You cannot say that you will prosecute terrorism aggressively while evading such a statement about war crimes committed by our own nation. Both terrorism and war crimes are equal crimes and deserve a commitment to be equally prosecuted.
For the Holder story, click here.
For the full story on the Gitmo closing, click here.
I for one welcome this move. It forces Obama/Holder to either publicly state that war crimes committed by US officials are not really crimes (as opposed to acts committed by Very Dangerous Men With Beards and Strange Names), or he will have to officially launch a criminal investigation.
He/they can no longer attempt to evade the issue.
Senator Leahy stated this in the linked article:
{Quote… “The problems and threats confronting the country are too serious to delay,” he said. A quick confirmation of Mr. Holder, Mr. Leahy said, would represent “a small but important step in answering the nation’s call for bipartisanship.” …End Quote}
_________________________
I disagree. The advice and consent obligations of the U.S. Senate must occur without the interference of unexplored and/or automatic philosophical bipartisanship simply for the sake of getting along with each other. Let the Republicans have their opportunities to vet Mr. Holder to the fullest.
I strongly support Holder as long as he does not abrogate his legal obligations to enforce the U.S. Constitution and all of the treaties to which the U.S. was a signatory and often championed.
Can someone help me answer a question. This morning I watched comentators on MSNBC debate what constitutes torture. I have to believe that what is and what isn’t torture has already been established in relation to the treaties we have signed. Am I correct? Where would one find this information? Thanks
TJAZ:
You can check other posts here or see 18 USC Sec. 2340 for the definition. Here it is:
As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
Quote from one of the most recently ratified treaties:
U.N. Convention Against Torture
“The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights treaty, which requires state parties to prohibit and prevent torture and cruel, inhuman or degrading treatment or punishment in any territory under the state’s jurisdiction. The treaty entered into force on June 26, 1987 and, as of April 2006, has been ratified by 141 countries.
The United States ratified the treaty in 1994. By doing so, it became bound to respect the treaty’s prohibitions against torture and other forms of ill treatment, to take effective measures to prevent and punish such conduct, and to periodically report on its compliance with the treaty to the Committee Against Torture – a committee of experts established by the treaty. The United States submitted its initial report in 1999 and its second periodic report in 2005.”
Here, among others, is a good listing of International Treaties Against Torture:
http://www.tassc.org/index.php?sn=83
♦ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
♦ Geneva Convention relative to the Treatment of Prisoners of War
♦ Inter-American Convention to Prevent and Punish Torture
♦ International Covenant on Civil and Political Rights
♦ Universal Declaration of Human Rights
♦ War Crimes Act of 1996 – 18 U.S.C. – 2441
♦ World Medical Association Declaration of Tokyo: (Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment)
♦ Optional Protocol to the Torture Convention
Here is the Center for Constitutional Rights take on the closing of Gitmo:
“We are deeply concerned that this draft executive order projects a timeline of one year for closing the prison camp and outlines no concrete steps. In one year, the men at Guantánamo will have been held there indefinitely for eight full years. We know that President Obama can do better, and we want him to know that the people of the United States, who overwhelmingly elected him and rejected the legacy of the Bush administration, believe he can do better.
There is a great deal of discussion about the difficulty of closing the base. In fact, as the Center for Constitutional Rights has laid out in a clear and concise report, closing Guantánamo is easy. There are three simple and necessary steps to close Guantánamo:
1. send those who can go home home,
2. secure safe haven for those who cannot, and
3. charge those who can be charged then try them in ordinary federal criminal court.
President Obama should commit to dismantling the military commissions, not just suspending them, and to prosecuting any cases before federal criminal courts – real courts with real laws. He should also reject any form of so-called ‘preventive detention’ or ‘national security courts.’”
The preventative detention and national security courts are very disturbing. These courts would allow testimony obtained through torture. Preventative detention is illegal. There are about 60 people with little to no evidence of guilt that intelligence agencies want detained. To detain people with no evidence is beyond the pale. We have real choices and the right one should be made.
As to Holder, I agree with other above. Let questions be asked and answered. We’ve seen a world of grief when they are not.
Jill,
The American soldier Al Queda member Omar Khadr killed with a grenade when he was 15 was an ARMY MEDIC.
A MEDIC……………….a person who SAVES lives. A MEDIC.
Jill, an introduciton to the Khadr family:
“We are an Al Qaeda family.” So spoke one of the Khadrs, a Muslim Canadian household whose near single-minded devotion to Osama bin Laden contains important lessons for the West.
In 1985, in the course of working in Afghanistan, Khadr met bin Laden and became his close associate. Sometimes Khadr was described as the highest ranking of Al Qaeda’s 75 Canadian operatives.
In 1996, he and his wife set up an Islamic charity they named “Health and Education Project International.” When the Taliban took control in Afghanistan a few months later, the parents and their six children decamped there. As he worked closely with bin Laden, Khadr became known for his militant Islamic vitriol, leading one Frenchman in Afghanistan to observe about him,” I never met such hostility, someone so against the West.”
Like other Al Qaeda leaders, Khadr disappeared from view soon after 9/11. He spent two years on the lam, reappearing only in October 2003,when Pakistani forces unexpectedly found that the DNA of one unrecognizable corpse from a bloody shootout matched Khadr’s.
The terrorism-related activities of other Khadr family members — wife, one of two daughters, three of four sons — complement their patriarch’s record.
Wife Maha Elsamnah took her then 14-year-old son Omar from Canada to Pakistan in 2001 and enrolled him for Al Qaeda training.
Daughter Zaynab, 23, was engaged to one terrorist and married, with Osama bin Laden himself present at the nuptials, a Qaeda member in 1999. Zaynab endorses the 9/11 atrocities and hopes her infant daughter will die fighting Americans.
Son Abdullah, 22, is a Qaeda fugitive constantly on the move to elude capture. Canadian intelligence states he ran a Qaeda training camp in Afghanistan during the Taliban period, something Abdullah denies.
Son Omar, 17, stands accused of hurling a grenade in July 2002, killing an American medic in Afghanistan. Omar lost sight in one eye in the fighting and is now a U.S. detainee in Guantánamo.
Son Abdul Karim, 14, half-paralyzed by wounds sustained in the October 2003 shoot-out that left his father dead, is presently prisoner in a Pakistani hospital.
Fortunately, there is also one positive story:
Son Abdurahman, 21, reluctantly trained with Al Qaeda, was captured by coalition forces in November 2001 and agreed to work for the Central Intelligence Agency in Kabul, Guantánamo, and Bosnia. He returned to Canada in October 2003, where he denounced both extremism (”I want to be a good, strong, civilized, peaceful Muslim” ) and his family’s terroristic ways.
PS:
Rachael Maddow needs to apologize to American soldiers.
Symbolism Only Goes So Far
Today Barack Obama issued an entirely symbolic executive order, directing that the terrorist detainee facility at Guantanamo Bay be closed within one year. Gitmo, of course, was created in answer to the question, What are we going to do with captured terrorists? Now, with that facility slated for closure, the question arises once more.
It arose, in fact, in Press Secretary Robert Gibbs’ first press conference today. I found this exchange somewhat amusing:
QUESTION: Robert, how can you say the executive order on Guantanamo Bay — you can say clearly made America safer today, when it doesn’t seem like you really have a plan yet about where the detainees are going to go?
GIBBS: Well, one of the — I think one of the things that the commission and one of the things that the executive orders does is begin the process whereby the current administration can examine what exactly is going on and who exactly is there. …
That’s why I was careful in saying that the process by which this will undertake over the course of up to one year will determine, as Greg laid out, who’s involved in what status of detainee, which group that they’re involved in, and ultimately study how best to — to deal with them in a way that protects our country, protects our values, and administers justice.
QUESTION: So these are terror suspects, and the American people are hearing, “Washington’s going to study it.” They’re going to find out for a few more months, what are we going to do with these detainees? So what…
GIBBS: Well, it is day two. …
QUESTION: No, but he was talking about it on the campaign for months, on Guantanamo Bay.
QUESTION: But the bottom line is that you’ve been talking about it — the president talked about it on the campaign trail. People have studied this for a long time. And you’re now signing the executive order without a plan for where the detainees will be. What assurances can you give the…
GIBBS: No. No, we’ve signed an executive order to establish the plan for what happens.
QUESTION: But what assurance can you give the American people that these detainees just won’t wind up out on the streets, won’t go back to their home countries and launch new terror attacks?
GIBBS: I can assure them that that — all of — all of what you just enumerated will be undertaken and studied as part of a commission to look into these very complex, very detailed questions.
So, in other words, Obama’s order accomplishes nothing other than to kick the can down the road. The question of what to do with the terrorists will be “studied”–and, by the way, it’s now a “very complex, very detailed question.”
Obama also ordered that the CIA be limited in its interrogations of captured terrorists to the small menu of techniques identified in the Army’s Field Manual. This makes little sense; the Field Manual is intended to instruct soldiers with little or no training as interrogators in questioning enemy soldiers captured on the battlefield, conditions that have nothing to do with the highly specialized case of trained CIA experts trying to get potentially life-or-death information from leaders of al Qaeda and similar groups.
This topic, too, came up in today’s press conference, when a reporter asked, in effect, Are you kidding?
QUESTION: Just so the American people have an understanding, if, for example, U.S. forces were to capture Osama bin Laden or someone less well known, but of operational significance, are they to understand, the American people, that only the Field Manual and the Field Manual only will be the interrogation method used to interrogate a target as valuable potentially as Osama bin Laden or someone of that operational significance?
GIBBS: Well, as it relates to your first question, let me get some guidance from — from Greg and members of the NSC.
Today’s executive order can charitably be described as meaningless, but it illuminates the least attractive side of Barack Obama: his tendency to combine self-righteousness with lack of seriousness.
Quantity does not equal quality.
Quantity dosen’t equal quality?
quantiity doEsn’t qual equality!
Qaujnaty Daneds’t Equal QALUITY?!
Gynes,
Either lay off the weed or pass the Dutchie, Bogart.
Buddha,
I can only afford one vice at a time, and right now it comes from fermented barley water.
Hitchens did a piece for Vanity Fair (it’s online) where he subjected himself to Waterboarding. He says “it’s torture”.
Also, please don’t feed the Trolls.
Why is it that whenever torture by the Bush regime, we get an extra dosage of trolls showing up spewing their nonsense automatic writing? Could the Republicans be worried about their party going the way of the Edsel due to criminal charges against some of their top officials?
Jill,
I agree that the Military Commissions need to be dismantled. These prisoners can be tried in the Federal Court and actually have a chance to defend themselves.
rafflaw: your executive order to close gitmo is nothing other than an executive order to create a plan for a plan to close gitmo:
Symbolism Only Goes So Far
Today Barack Obama issued an entirely symbolic executive order, directing that the terrorist detainee facility at Guantanamo Bay be closed within one year. Gitmo, of course, was created in answer to the question, What are we going to do with captured terrorists? Now, with that facility slated for closure, the question arises once more.
It arose, in fact, in Press Secretary Robert Gibbs’ first press conference today. I found this exchange somewhat amusing:
QUESTION: Robert, how can you say the executive order on Guantanamo Bay — you can say clearly made America safer today, when it doesn’t seem like you really have a plan yet about where the detainees are going to go?
GIBBS: Well, one of the — I think one of the things that the commission and one of the things that the executive orders does is begin the process whereby the current administration can examine what exactly is going on and who exactly is there. …
That’s why I was careful in saying that the process by which this will undertake over the course of up to one year will determine, as Greg laid out, who’s involved in what status of detainee, which group that they’re involved in, and ultimately study how best to — to deal with them in a way that protects our country, protects our values, and administers justice.
QUESTION: So these are terror suspects, and the American people are hearing, “Washington’s going to study it.” They’re going to find out for a few more months, what are we going to do with these detainees? So what…
GIBBS: Well, it is day two. …
QUESTION: No, but he was talking about it on the campaign for months, on Guantanamo Bay.
QUESTION: But the bottom line is that you’ve been talking about it — the president talked about it on the campaign trail. People have studied this for a long time. And you’re now signing the executive order without a plan for where the detainees will be. What assurances can you give the…
GIBBS: No. No, we’ve signed an executive order to establish the plan for what happens.
QUESTION: But what assurance can you give the American people that these detainees just won’t wind up out on the streets, won’t go back to their home countries and launch new terror attacks?
GIBBS: I can assure them that that — all of — all of what you just enumerated will be undertaken and studied as part of a commission to look into these very complex, very detailed questions.
So, in other words, Obama’s order accomplishes nothing other than to kick the can down the road. The question of what to do with the terrorists will be “studied”–and, by the way, it’s now a “very complex, very detailed question.”
Obama also ordered that the CIA be limited in its interrogations of captured terrorists to the small menu of techniques identified in the Army’s Field Manual. This makes little sense; the Field Manual is intended to instruct soldiers with little or no training as interrogators in questioning enemy soldiers captured on the battlefield, conditions that have nothing to do with the highly specialized case of trained CIA experts trying to get potentially life-or-death information from leaders of al Qaeda and similar groups.
This topic, too, came up in today’s press conference, when a reporter asked, in effect, Are you kidding?
QUESTION: Just so the American people have an understanding, if, for example, U.S. forces were to capture Osama bin Laden or someone less well known, but of operational significance, are they to understand, the American people, that only the Field Manual and the Field Manual only will be the interrogation method used to interrogate a target as valuable potentially as Osama bin Laden or someone of that operational significance?
GIBBS: Well, as it relates to your first question, let me get some guidance from — from Greg and members of the NSC.
Today’s executive order can charitably be described as meaningless, but it illuminates the least attractive side of Barack Obama: his tendency to combine self-righteousness with lack of seriousness.
God isn’t American, jerkwad.
God Bless America,
I responded to your nonsense on one of the other threads. One response to the same tired story is enough. Go ahead and collect your RNC paycheck tomorrow and do your best to spend it so the economy that Bush tanked can benefit.
This is an interesting story to what we have in Gitmo that you all want to let run free:
The American soldier Al Queda member Omar Khadr killed with a grenade when he was 15 was an ARMY MEDIC.
A MEDIC……………….a person who SAVES lives. A MEDIC.
Jill, an introduciton to the Khadr family:
“We are an Al Qaeda family.” So spoke one of the Khadrs, a Muslim Canadian household whose near single-minded devotion to Osama bin Laden contains important lessons for the West.
In 1985, in the course of working in Afghanistan, Khadr met bin Laden and became his close associate. Sometimes Khadr was described as the highest ranking of Al Qaeda’s 75 Canadian operatives.
In 1996, he and his wife set up an Islamic charity they named “Health and Education Project International.” When the Taliban took control in Afghanistan a few months later, the parents and their six children decamped there. As he worked closely with bin Laden, Khadr became known for his militant Islamic vitriol, leading one Frenchman in Afghanistan to observe about him,” I never met such hostility, someone so against the West.”
Like other Al Qaeda leaders, Khadr disappeared from view soon after 9/11. He spent two years on the lam, reappearing only in October 2003,when Pakistani forces unexpectedly found that the DNA of one unrecognizable corpse from a bloody shootout matched Khadr’s.
The terrorism-related activities of other Khadr family members — wife, one of two daughters, three of four sons — complement their patriarch’s record.
Wife Maha Elsamnah took her then 14-year-old son Omar from Canada to Pakistan in 2001 and enrolled him for Al Qaeda training.
Daughter Zaynab, 23, was engaged to one terrorist and married, with Osama bin Laden himself present at the nuptials, a Qaeda member in 1999. Zaynab endorses the 9/11 atrocities and hopes her infant daughter will die fighting Americans.
Son Abdullah, 22, is a Qaeda fugitive constantly on the move to elude capture. Canadian intelligence states he ran a Qaeda training camp in Afghanistan during the Taliban period, something Abdullah denies.
Son Omar, 17, stands accused of hurling a grenade in July 2002, killing an American medic in Afghanistan. Omar lost sight in one eye in the fighting and is now a U.S. detainee in Guantánamo.
Son Abdul Karim, 14, half-paralyzed by wounds sustained in the October 2003 shoot-out that left his father dead, is presently prisoner in a Pakistani hospital.
Fortunately, there is also one positive story:
Son Abdurahman, 21, reluctantly trained with Al Qaeda, was captured by coalition forces in November 2001 and agreed to work for the Central Intelligence Agency in Kabul, Guantánamo, and Bosnia. He returned to Canada in October 2003, where he denounced both extremism (”I want to be a good, strong, civilized, peaceful Muslim” ) and his family’s terroristic ways.
PS:
Rachael Maddow needs to apologize to American soldiers.
Rachel or whatever your latest troll name is,
Gitmo is going to be closed and I think all of the detainees are going to be dropped on your doorstep. I got this news flash right from Rush, so it must be true.
The decision to delay the confirmation vote for a week was the work of Sen. John Cornyn, who appears to be insisting that Mr. Holder ratify the senator’s view that the intent of the Military Commissions Act was to provide immunity to good faith torturers. As a former judge, Sen. Cornyn knows that his inquiry is improper. He is attempting to elicit a predetermined response to a hypothetical question framed in a manner that assumes the legal correctness of his own statutory interpretation. The good senator knows that it is inappropriate to demand that Mr. Holder prejudge cases which his office may be called upon to investigate, let alone accept as truth Sen. Cornyn’s opinion of the intent of the Military Commissions Act. What Sen. Cornyn personally intended is immaterial. If he and his colleagues did their jobs properly, the meaning and intent of the legislation will be evident from the language they employed. It will be the function of the court to ascertain the meaning of the statute. It will be the function of the jury to ascertain the guilt or innocence of anyone charged with a violation. In the meantime, the only correct answer Mr. Holder can provide is that he, albeit in a departure from the practices of his recent predecessors, will prosecute all violations of laws and treaties which fall within the jurisdiction of the DOJ. If this response is not sufficient for Sen. Cornyn and other Republican apologists for lawlessness, so be it. I might add that had Sen. Cornyn displayed a comparable level of interest in administration appointees to the Justice Department during the past eight years, we might not be having this debate.
Cornyn is indeed a Neocon and part of the problem. Thanks for the info, raff. All I’d seen today was stories of an “unidentified hold” (which instantly registered 100% on my bullshit meter). This explains it all.
Holy crap that’s what I get for blogging when experiencing insomnia. Sorry, Mike. Didn’t mean to call you raff. It’s not an insult, I assure you, although some might think “them’s a fightin’ words”. Since you are not a Neocon, I thinking you’ll take no offense.
None taken, Buddha.
Did the United States give World War II prisoners of war access to our justice system? What is the rule of law for prisoners of war? Perhaps Gitmo should remain open and subject to the Geneva Convention.
closing Guantanamo represents a step in the right direction; pretty soon the U.S. will be able to join the world community once again
Buddha,
MA and I look like each other! If I was Mike I would be upset to be confused with an old guy like me.
posted by Mark Kleiman at samefacts.com:
You’re free to believe that Eric Holder didn’t know, when he said flat-out at his confirmation hearing that waterboarding is torture, that doing so would commit him to at least investigating the BushCO waterboarding spree, because of our treaty obligations under the Convention Against Torture. And you’re also free to believe that his handlers hadn’t thought the problem through, and that he hadn’t cleared his answer with the President.
I however, am free to believe otherwise. I doubt that, in the end, any of the actual torturers will face a jury, but the folks who gave the orders and provided the legal cover are likely to go through several very bad months at the very least, quite possibly followed by several VERY bad years.
Holder will order an investigation, the investigation will come back with the conclusion that there is enough evidence to convict X, Y, and Z (where the value of X might well be “Cheney”) of conspiracy to torture, Holder will reluctantly say that the law must take its course, because the treaty strips him of prosecutorial discretion if the only grounds for not prosecuting are policy and politics rather than doubt about guilt or about the evidence to prove it, Obama will even more reluctantly say that, much as he’d prefer to look forward rather than back, he swore to take care that the laws be faithfully executed and it would be inappropriate for him to interfere with justice.
But the precedent of having the political appointee of one President accuse members of his predecessor’s administration of official crimes is not a comfortable one. So Holder will want to outsource the prosecution. Patrick Fitzgerald’s name has been thrown around quite a lot, but he’s going to be rather busy in Illinois for quite a while.
One obvious name: William Howard Taft IV. He fought a strong battle against torture from his Bush-appointed post as the senior legal adviser at State, one of a string of senior jobs he’s held in Republican administrations. Best of all, even the wingnuts are going to have a hard time claiming that someone with that name is a partisan Democrat. On the other hand, it’s possible that Taft will be a witness in the case, which obviously would rule him out.
Other names? Someone from the JAG corps?
Comments are busted, but I’ll compile the emails I get into a follow-up post.
Footnote Volokh Conspirator Eric Posner says that since the other parties to the Convention Against Torture are unlikely to do anything to enforce its provisions, Holder has full discretion to decline prosecution on political or policy grounds. But a duly ratified treaty is the law of the land, and Holder is sworn to uphold the law. Could he get away with not prosecuting, in the face of enough evidence to convict? Sure. But he’d be violating his oath of office.
The Center for Constituional Rights sent the following message on the Army Field Manuals and torture:
“The AFM is a guidebook for U.S. interrogators that sets standards in accordance with the law. The AFM has several serious shortcomings, particularly following a Bush-era revision in 2006 that attempted to legitimize some of the abuses taking place at Guantánamo and elsewhere. The executive order on torture implicitly approves of the current AFM as it stands; it is critical that, by signing the executive orders, President Obama truly means an end to U.S. torture and cruel, inhuman and degrading treatment.
While the AFM does not allow waterboarding, it currently approves techniques that constitute torture. For instance, Appendix M (a section introduced in 2006 that applies only to “unlawful combatants”) permits techniques like prolonged isolation, sleep and sensory deprivation and inducing fear and humiliation. These techniques, especially when used in combination, constitute cruel, inhumane and degrading treatment, and possibly torture and were condemned by a bipartisan congressional report released last month, as well as by the Bush-appointed head of the military commissions at Guantanamo. For the full text of this action alert and to write to Presiden Obama, click here.
Join us in urging President Obama to ensure that no administration will take us back to the dark times of torture perpetrated in our name.
Yours truly,
Vincent Warren
Executive Director, CCR
Have we forgotten WW-II and the Nazi prisoners the United States government housed in a number of southern states in America during that war, some of which were given a chance to become farm larorers during and after the war, even becoming citizens and obtaining farm land ? These, along with Nazi sympothizers in New York City, the American Bund, were given freedoms that most minority citizens were denied during the same period. Lets get real with ourselves, this country has two standards, and they are not equal.