Hopeful Signs

by hilzoy

From the Washington Post:

"In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba -- a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for "a continuance of the proceedings" until May 20 so that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

The same motion was filed in another case scheduled to resume Wednesday, involving a Canadian detainee, and will be filed in all other pending matters.

Such a request may not be automatically granted by military judges, and not all defense attorneys may agree to such a suspension. But the move is a first step toward closing a detention facility and system of military trials that became a worldwide symbol of the Bush administration's war on terrorism and its unyielding attitude toward foreign and domestic critics."

This is wonderful news. And so is this, from Jack Balkin:

"Some of you may have noticed that Marty Lederman has not been blogging recently at Balkinization. The reason is that he has been working on the Department of Justice Transition team. As of today, the commencement of the Obama Administration, he begins work as Deputy Assistant Attorney General in the Office of Legal Counsel. (...)

Needless to say, I am very pleased for the country by Marty's new job. I do not exaggerate when I say that Marty is one of the finest lawyers I know, and there is perhaps no better time to put his remarkable talents to use in helping to reform a Justice Department that so badly needs reform."

Marty Lederman has been one of the most forthright and vocal opponents of the Bush administration's policies on torture and detention. I have never met him, but you can tell a fair amount by someone from his blog, and the knowledge that Marty Lederman will be taking over John Yoo's old job is one of the most heartening pieces of news I've had in a transition that has had more than its share of them.

One other point about this appointment: at various points during the Presidential campaigns, I recall people arguing that whatever Obama might say about Bush's expansions of executive power, if he became President he would probably find those powers pretty convenient, and would want to hold onto them. In that light, it's worth noting that Marty Lederman is the co-author of a set of two articles (1, 2) that considers, in exhaustive (!) detail, the main conceptual foundation of the argument that the President has the right to set aside laws passed by Congress when conducting a war, and (basically) finds it to be baseless. The other co-author, David Barron, has also been appointed to a position in the Obama administration's Office of Legal Counsel. 

In other words: the people who have been appointed to two of the most senior positions in the OLC, which (basically) tells the Executive branch what is legal and what is not, have explicitly and publicly rejected some of the Bush administration's central arguments in support of its expansive view of executive power. It's hard for me to see how they could reverse themselves on that score with a straight face, or why Obama would have appointed them if he had the slightest intention of adopting the Bush administration's views on this topic.

Both of these developments leave me feeling pretty hopeful.

Comments

[Ben Alpers]

Excellent news indeed!

[publius]

best thing ever ever ever ever

[Jesurgislac]

Yay.

(I have a lingering, rotten cold, but still: Yay.)

[JadeGold]

While the imminent closing of Gitmo is certainly a welcome and positive development, Bush has left President Obama another almost impossible mess.

There are about 250 detainees at Gitmo. It is believed roughly 150 of these detainees present no danger and can be released. But where? Some of their home countries either won't take them or may imprison them or worse.

What to do with the 100 dangerous detainees? Most, if not all, have been tortured--so good luck obtaining convictions in any US court of law.

Just another fine mess courtesey of the GOP.

[farmgirl]

How reliable is that "dangerous" figure, though? If we're taking the word of the same people who think "returning to the fight" includes writing an op-ed or giving an interview about their treatment at Gitmo, I'm going to need alternate sourcing.

[Elemenope]

How reliable is that "dangerous" figure, though? If we're taking the word of the same people who think "returning to the fight" includes writing an op-ed or giving an interview about their treatment at Gitmo, I'm going to need alternate sourcing.

The problem is not the number of them; the problem is that any exist at all. The problems would be the same whether it were five unprosecutable dangerous people or five hundred.

[Eric Martin]

(dancing around office for Marty Lederman1!!QQSQ!!!!INEBQ!!!)

[bbartlog]

seek a 120-day suspension of legal proceedings [...] a clear break with the approach of the outgoing Bush administration.

Maybe I expect too much, but how does suspending the legal proceedings represent 'a clear break'? The main issue is that these guys were held without trial, i.e. legal proceedings; so now we get four more months of... being held without trial. I think you need to wait and see what the next step is before you can talk about a clear break. This is one area where I'm optimistic about Obama (the Lederman appointment is especially good news), but let's not get ahead of ourselves.

[OCSteve]

This is wonderful news.

I’m not sure… Doesn’t this just put them all in limbo for another 4 entire months?

[Turbulence]

The problem is not the number of them; the problem is that any exist at all. The problems would be the same whether it were five unprosecutable dangerous people or five hundred.

The world is full of dangerous people though. It cannot be the goal of any government program to ensure that no dangerous people walk free. That's insane.

I’m not sure… Doesn’t this just put them all in limbo for another 4 entire months?

Well, what are the alternatives? Spending four months in limbo seems like a better deal to me than getting prosecuted in a kangaroo court, yes? Unfortunately, four months is rather short compared to the time that many of these guys have already done. Obviously, the best thing would be for Obama to wave a magic wand and make everything better right NOW, but since that is impossible, putting the brakes on for long enough to regroup seems like a the best available option.

[Elemenope]

The world is full of dangerous people though. It cannot be the goal of any government program to ensure that no dangerous people walk free. That's insane.

You misunderstood the "problem" to which I was referring. The problem at issue is that there are a certain [number > 0] detainees who have been tortured, and thus cannot be prosecuted in a lawful court, and yet are "bad" people who have either stated or otherwise indicated they intend to harm others when released, and are also not welcome in their country of origin.

My point is that we can quibble on what that number greater than zero happens to be, but it doesn't much matter as the problem is easily as big with five such persons as it is with fifty. The vagary is simple logistics.

[Gary Farber]

"You misunderstood the 'problem'
to which I was referring."

I don't see how this is reponsive to the point you're responding to, which answers the point you are repeating. Yes, some of them are "bad" people. Not all the bad people in the world are locked up. We let murderers go free if there's not enough evidence, or evidence is impermissibly obtained. We live with that. Freedom isn't free, as they like to say.

[Elemenope]

I don't see how this is reponsive to the point you're responding to, which answers the point you are repeating. Yes, some of them are "bad" people. Not all the bad people in the world are locked up. We let murderers go free if there's not enough evidence, or evidence is impermissibly obtained. We live with that. Freedom isn't free, as they like to say.

"Just letting them go" is a possible solution. One of many, with its attendant advantages and disadvantages.

But, please, tell me you don't honestly want to argue that letting, say, KSM free, is the same thing as "whoops, we interrogated that murder suspect too long, gotta let him go".

[Elemenope]

Not to mention that "letting them go", i.e. repatriation, is not an option with many of the detainees, for whom we have reason to believe will be either refused admittance to their country or origin, or tortured and/or murdered once they arrive. Puts a crimp in the "just let them go" solution, if you ask me.

[Gary Farber]

AClU plan to close Guantanamo.

"But, please, tell me you don't honestly want to argue that letting, say, KSM free, is the same thing as 'whoops, we interrogated that murder suspect too long, gotta let him go'."

No one thing is identical to another not identical thing.

But it sounds as if KSM is in no condition to ever plan anything again beyond his next potty.

[JadeGold]

So, Gary, do we allow a Khalid Sheik Mohammed to walk?

I understand you're coming at this from principle but it won't play well politically.

[Eric Martin]

But, please, tell me you don't honestly want to argue that letting, say, KSM free, is the same thing as "whoops, we interrogated that murder suspect too long, gotta let him go"

Actually, there's an intelligence value in letting KSM go because we could then track his activities and let him lead us to his past, current and new associates.

Intel agencies do this type of thing all the time.

Whereas, the police would not be permitted to continue surveillance on an exonerated murderer absent some new probable cause.

[Eric Martin]

Adding: I still would rather not let KSM out if there is a way to do this within the confines of our legal regime...

[Elemenope]

Actually, there's an intelligence value in letting KSM go because we could then track his activities and let him lead us to his past, current and new associates.

Intel agencies do this type of thing all the time.

Whereas, the police would not be permitted to continue surveillance on an exonerated murderer absent some new probable cause.

Fair point. Makes it a reasonable idea, though I'd still say not a *good* one.

[ThirdGorchBro]

A thought - why not reclassify the ones we believe to be too dangerous to let go free as prisoners of war? It would preclude trials, but would also prevent them from being let go as long as the War on Terror continues. Which could be a very long time.

[Eric Martin]

Makes it a reasonable idea, though I'd still say not a *good* one.

Oh, I agree. See my follow up in which I sought to clarify my lack of enthusiasm.

[Gary Farber]

Signs:

[...] Mr. Obama said no one would be given a job in any area where he or she had lobbied within the two preceding years, and if they left the White House before he did, they would have to agree not to work on those issues “as long as I am president.”

He said that “for a long time, there’s been too much secrecy in this city.”

Every governmental agency or department should know, Mr. Obama said, that his administration stands not “on the side of those who want to withhold information but those who seek to make it known.”

[novakant]

It would preclude trials, but would also prevent them from being let go as long as the War on Terror continues. Which could be a very long time.

Yeah, great, let's declare a permanent state of war to circumvent uncomfortable legal issues - one step further to a totalitarian state. For god's sake, the law is the law, I had hoped bending it would go out of fashion with Obama - guess I'm naive.

[russell]

Mr. Obama said no one would be given a job in any area where he or she had lobbied within the two preceding years, and if they left the White House before he did, they would have to agree not to work on those issues “as long as I am president.”

Day one. Seriously, I'm in heaven.

I'm sure the euphoria won't last but it's been such a long time without that I honestly don't know how to react to good news anymore. Weird, huh?

[Phil]

ThirdGorchBro, I can't imagine that would work at all. For one thing -- assuming we're actually going to start complying with the Geneva Conventions again -- a great many of these people don't fall into any of the categories that the Conventions describe for holding people as prisoners of war. And if there's a doubt as to whether they do belong to those groups, we're supposed to have provided tribunals. (You'll recall that opponents of the Guantanamo regime have been harping on that for some time.)

And even if we could categorize them as prisoners of war -- and just who are we at war with, again? What political entity do these people belong to? -- that then necessitates certain treatment that, to some of the more reactionary crowd, is not much better than letting them go.

See, if we had gone with the law enforcement model from the outset like the nasty liberals had wanted, we could have avoided these problems now. :)

[Gary Farber]

"A thought - why not reclassify the ones we believe to be too dangerous to let go free as prisoners of war?"

Prisoners of war are entitled to all sorts of privileges according to the Geneva Conventions.

First of all, it's unclear where in Article 4 he'd qualify. Which subclause would you suggest he falls under?

Second of all, which Protection Power would he fall under?

[...] When prisoners of war do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.

Third, it's a little belated:

[...] Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.

Fourth, where's his canteen?

[...] Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use. The tariff shall never be in excess of local market prices. The profits made by camp canteens shall be used for the benefit of the prisoners; a special fund shall be created for this purpose. The prisoners' representative shall have the right to collaborate in the management of the canteen and of this fund.

When a camp is closed down, the credit balance of the special fund shall be handed to an international welfare organization, to be employed for the benefit of prisoners of war of the same nationality as those who have contributed to the fund. In case of a general repatriation, such profits shall be kept by the Detaining Power, subject to any agreement to the contrary between the Powers concerned.

Fifth, is he getting this?

[...] While respecting the individual preferences of every prisoner, the Detaining Power shall encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners, and shall take the measures necessary to ensure the exercise thereof by providing them with adequate premises and necessary equipment.

Prisoners shall have opportunities for taking physical exercise, including sports and games, and for being out of doors. Sufficient open spaces shall be provided for this purpose in all camps.

How about this?

[...] Upon the outbreak of hostilities, the Parties to the conflict shall communicate to one another the titles and ranks of all the persons mentioned in Article 4 of the present Convention, in order to ensure equality of treatment between prisoners of equivalent rank. Titles and ranks which are subsequently created shall form the subject of similar communications.

The Detaining Power shall recognize promotions in rank which have been accorded to prisoners of war and which have been duly notified by the Power on which these prisoners depend.

Or this:

[...] Officers and prisoners of equivalent status shall be treated with the regard due to their rank and age.

In order to ensure service in officers' camps, other ranks of the same armed forces who, as far as possible, speak the same language, shall be assigned in sufficient numbers, account being taken of the rank of officers and prisoners of equivalent status. Such orderlies shall not be required to perform any other work.

Supervision of the mess by the officers themselves shall be facilitated in every way.

Whatever happened to this?

[...] Immediately upon capture, or not more than one week after arrival at a camp, even if it is a transit camp, likewise in case of sickness or transfer to hospital or another camp, every prisoner of war shall be enabled to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided for in Article 123, on the other hand, a card similar, if possible, to the model annexed to the present Convention, informing his relatives of his capture, address and state of health. The said cards shall be forwarded as rapidly as possible and may not be delayed in any manner.

Is he going to get this?

[...] Prisoners of war shall be allowed to receive by post or by any other means individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies and articles of a religious, educational or recreational character which may meet their needs, including books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits and materials allowing prisoners of war to pursue their studies or their cultural activities.

Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the present Convention.

The only limits which may be placed on these shipments shall be those proposed by the Protecting Power in the interest of the prisoners themselves, or by the International Committee of the Red Cross or any other organization giving assistance to the prisoners, in respect of their own shipments only, on account of exceptional strain on transport or communications.

Etc. One can keep going for a while with these questions.

"Makes it a reasonable idea, though I'd still say not a *good* one."

Why would holding a guy all information has been wrung from be a better idea than continuing to use him for intelligence purposes? Do you think our agencies are incapable of keeping track of him? (Certainly that's one argument one could make.)

At this point, the argument for incarcerating him without trial seems to be more one of revenge, than of practical fear of recidivism or threat. I have no quarrel with imprisoning him in accordance with our laws, but outside them?

Oh, and if KSM is a prisoner of war, a war has to come to an end, and prisoners freed at such time. How, exactly, will we be determining when a war on an abstract noun ends? When the noun signs a surrender document?

[Gary Farber]

"Prisoners of war are entitled to all sorts of privileges according to the Geneva Conventions."

Rights, not privileges, I should have said.

[Turbulence]

I don't really understand why we should want to hold KSM. I mean, he's got no information that is of value to us at this late date. Is there a shortage of reasonably smart people desperate to kill Americans in the middle east? Because if there's not, then how exactly does keeping this guy in prison benefit us? Deterrence? Vengeance?

It just seems like he's a drop in the bucket. Even if we don't track him like crazy, everyone else will assume we're doing so. No one with a brain will ever be able to trust him again because there's no way to prove that the CIA didn't reprogram him or didn't implant a magic transceiver in his brain.

[deBohun]

Hmmm, people reversing themselves once they gain power. It's not like that's never happened before!

[Brendan]

Well done Mr. President - a good start

[Dawn Plaskon]

Here's an out of the box idea. Treat those who cannot return to their homes as an immigrant seeking sanctuary and give them a visa. Even easier to monitor them from within the United States, and given what we have done to them over the past 8 years, I sort of feel that we owe them (even the 'bad' ones).

Just throwing it out there for the sake of argument.

[Gary Farber]

Hi, Dawn! Long time, no anything!

"Hmmm, people reversing themselves once they gain power. It's not like that's never happened before!"

True, but what's the relevance here?

[Dawn Plaskon]

Hey there, Gary

Gafiated for a long time. Long story, many adventures, some were just interesting, some were horrendously bad, life is pretty good now.

You're right, what was the relevance of that comment? I wondered myself.

deBohun, care to clarify? As I read the early orders, our president is not only not reversing himself, but appears to be taking the steps necessary to fulfill his campaign agenda.

[Gary Farber]

Dawn, if perchance you'd do me the favor -- only if you feel like it, of course! -- of sending me your email address at gary underscore farber at yahoo dot com, I'd be delighted. No obligation implied.

(I've been mostly gafiated since around 2000-2001, myself, and blogging instead. More in email if you feel like it.)

[Jesurgislac]

Moving right over all the wibbling about what the US can legally or morally do with the 250 prisoners at Guantanamo Bay besides release them, with considerable financial compensation, in whatever country they choose/is willing to accept them (the US, as a default, obviously), my first thought about this new appointment was about the criminals in the Bush administration. George W. Bush no longer has immunity as head of state, and no longer has the right to pardon his subordinates for the crimes they committed.

Prosecute.

[Gary Farber]

Signs:

President Obama is expected to sign executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.

[...]

And the orders would bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

[...]

The order on Guantánamo says that the camp, which received its first hooded and chained detainees seven years ago this month, “shall be closed as soon as practicable, and no later than one year from the date of this order.”

[...]

The order also directs an immediate assessment of the prison itself to ensure that the men are held in conditions that meet the humanitarian requirements of the Geneva Convention.