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February 24, 2009


thank you, hilzoy, I was wondering when someone was going to write about this story.

I'm mostly with you, but I felt the simple idea of the Constitution following the flag was cool, noble, something to be proud of.

moving them into the middle of a war zone, and then arguing that any judicial intervention into their captivity would constitute interference with the military's conduct of a war.

bingo. my hunch is that Obama will now move the difficult Guantanamo cases to Afghanistan.

not bad for having his hands tied.

If the Obama administration establishes a decent system for deciding which Bagram prisoners were rightly detained and which were not, a system within which the prisoners have roughly the same rights as the plaintiffs in the Eisentrager case, I will be content

It would be nice if the Obama administration, while trying to figure out to undo the crimes of the Bush administration in such a way that they don't find themselves actually having to prosecute any of the criminals implicated - would actually stop the torture, kidnapping, and extra-judicial imprisonment. But especially the torture, since Obama did make some mild noises about how of course he wasn't going to prosecute anyone but he did think the US shouldn't be doing it.

But as I noted when you praised Obama for deciding to continue Bush's regime in the Defense department, it's hard to see how Obama - assuming he wanted to stop the torture - could have done so when he didn't want to make a clean break with the Bush regime in the military and he didn't want to investigate or prosecute the civilians responsible.

Binyam Mohamed was returned to the US last week. Medical evidence confirms his testimony that he was tortured recently - that torture continued almost until he was actually released, well past the date at which Barack Obama took office. (Force-feeding, for example, continued until February 11, according to testimony from his legal team as well as Mohamed himself.)

Is it too late for Obama to say now he really wants to make a change? That he really wants US torture to stop - and will ensure it does by prosecuting those responsible? It's more than a pity his supporters didn't feel they could make clear he needed to take a firm stand against torture before George W. Bush lost the power to pardon his fellow criminals, but it's not too late to tell Obama - as I intend to keep telling my government - that condoning torture as he and they have done is worse than a pity: it's a disgrace.

But if informed, principled Americans - like Hilzoy - don't see the issue of Obama condoning torture as sufficiently important to speak up about and condemn, I don't see anything changing: Obama clearly didn't see it as sufficiently important himself to take a stand for change in the US torture regime.

In my view, Eisentrager was wrongly decided for at least two reasons.

First, as it's applied these days, it represents a blank check to engage in exactly the kind of behavior included in the articles of impeachment of the Earl of Clarendon, and subsequently codified in the habeas act of 1679. You shouldn't be able defeat a person's right to test the legality of his incarceration just by deciding which jail to put him or her in.

Second, it's totally the wrong analysis anyway. We shouldn't care in the least about a court's jurisdiction or power over a plaintiff -- it's the jurisdiction and power over the defendant that matters. The power to grant a remedy for the defendant's wrongful conduct.

Here, we have a situation where the Executive claims that it has a power, conferred by the common law, to engage in a particular course of conduct. It also claims the ability to hide that conduct, under that law, from that branch whose special province it is to say what the law is. A power viewed as so essential to the functioning of the separation of powers principle that it is specifically called out in the Constitution.

It was important, in Boumediene, that the detainees who had brought suit were held at Guantanamo: a site that belonged to Cuba, but that was under complete US control. This is not true of Bagram. The practical obstacles to granting habeas rights are also (I assume) greater in the case of detainees at Bagram.

What is not true of Bagram? Surely it is under complete U.S. control. So what practical obstacles to granting habeas rights exist?

"Some detainees have been held without charge for more than five years, officials said."

How do you define end of hostilities in these types of war? I would definitely say that is a breach of Geneva -- for the real POWs -- since main combat operations have been over for a long time.

"that torture continued almost until he was actually released, well past the date at which Barack Obama took office. (Force-feeding, for example,"

You know, I really dislike the idea that our government engages in torture, and in practice it's not very productive anyway, moral issues aside. But I'm kind of put off by the notion that preventing somebody from successfully starving themselves to death should count as torture.

Brett, that depends on how you undertake the prevention.

Jesurgislac, I share your concerns about B.O.'s continuation of Bush's policies particularly torture, and opaqueness in government. It continues to blow my mind, how otherwise intelligent, people can think our ideals of human rights and principles don't follow our flag. The lack of conviction broadcast to the world, when we abandon these so called sacred principles, is a hypocrisy that is not lost on the rest of mankind and serves us all very poorly.

What is not true of Bagram? Surely it is under complete U.S. control. So what practical obstacles to granting habeas rights exist?

And even if you accept that Gitmo counts as US soil (or close enough) while Bagram doesn't... there is still no meaningful moral difference between them. And at the end of the day, what's more important: that detainees are treated morally or simply in a way that isn't technically unconstitutional?

At the tail end of these comments on torture and interrogation, Soviet dissident Vladimir Bukovsky describes the force feeding he underwent while on a hunger strike to protest his lack of legal representation.

Bukovsy also offers us this:

Every Russian czar after Peter the Great solemnly abolished torture upon being enthroned, and every time his successor had to abolish it all over again. These czars were hardly bleeding-heart liberals, but long experience in the use of these "interrogation" practices in Russia had taught them that once condoned, torture will destroy their security apparatus. They understood that torture is the professional disease of any investigative machinery.

The commander, Gen. Bantz J. Craddock, head of the United States Southern Command, said soldiers at Guantánamo began strapping some of the detainees into "restraint chairs" to force-feed them and isolate them from one another after finding that some were deliberately vomiting or siphoning out the liquid they had been fed . . .

"The head is immobilized by a strap so it can't be moved, their hands are cuffed to the chair and the legs are shackled," the notes quote Mr. Hassan as saying. "They ask, 'Are you going to eat or not?' and if not, they insert the tube. People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them." . . .

On Jan. 10, he said, a lieutenant came to his isolation cell and told him that if he did not agree to eat solid food, he would be strapped into the chair and force-fed. After he refused to comply, he said, soldiers picked him up by the throat, threw him to the floor and strapped him to the restraint chair.

Like Mr. Hassan, Mr. Murbati said he had been fed two large bags of liquid formula, which were forced into his stomach very quickly. "He felt pain like a 'knife in the stomach' " Mr. Colangelo-Bryan said.

Detainees said the Guantánamo medical staff also began inserting and removing the long plastic feeding tubes that were threaded through the detainees' nasal passages and into their stomachs at every feeding, a practice that caused sharp pain and frequent bleeding, they said. Until then, doctors there said, they had been allowing the hunger strikers to leave their feeding tubes in, to reduce discomfort.

That sound like torture to you, Brett?

Also, if someone wants to die, how is purposefully keeping them alive not torture? Are you, the libertarian, now proposing that people don't own their own bodies?

"Brett, that depends on how you undertake the prevention."

I agree; The problem I see here is the difference between evidence that somebody who was on a hunger strike was forced to eat, and evidence that somebody on a hunger strike was forced to eat in a manner that would constitute torture. The fact that the guy was forced to eat does not, IMO, constitute evidence of torture by itself.

Oh, and at the end of the day, if you've got enough control to dictate how prisoners are treated, and whether they're released, you've got enough control that habeus should apply, unless there are reasons it shouldn't that would be equally strong on clear US territory. The suspension clause reads in relevant part, "unless when in cases of rebellion or invasion the public safety may require it."

Suspending the Great Writ is not to be done for convenience, it's to be done out of necessity, and it can scarcely be argued to be necessary at this point.

Brett, what Phil said.

Also, the key reason Mohammed kept up the hunger strike?

He wanted to be released. He was on hunger strike because he had, months earlier, been cleared of all charges and he was still in a cell at Guantanamo Bay. He had been cleared. There was no issue about what country to release him to: he was able to go back to the UK.

So why, then, in February 2009, was he still in a cell at Guantanamo Bay being treated as if he were a criminal, when he had been cleared of all charges against him in October 2008? Obama claimed to want to close down Guantanamo Bay: claimed to want to end torture: claimed that he was going to do both.

Why wasn't Mohammed on the first plane out of Cuba on January 21?

"Obama claimed to want to close down Guantanamo Bay: claimed to want to end torture: claimed that he was going to do both.

Why wasn't Mohammed on the first plane out of Cuba on January 21?"

'Cause Obama didn't give a bucket of warm spit about Mohammed. That's why. Didn't give a bucket of warm spit about ending torture, didn't give a bucket of warm spit about anything that had you up in arms. He cared about being President.

You guys got played, and it was in large part because you hated the other side so much you didn't pay attention to what they were trying to tell you about the dude.

Step right up, ladies and gentlemen, and watch The Amazing Brett Bellmore, Mind-Reader Extraordinaire! Not only can he tell what Obama thinks, he can even tell that it was your "hatred" of "the other side" that blinded you. How does he do it?

Don't need to read somebody's mind to see what they care about. You just need to watch what they do, when they've got a chance to do what they want.

And your amazing knowledge of the role that "hatred" of the other side played in having us get played? Where does that come from?

I would hold that anyone our government detains for any substantial period of time (say, a couple of weeks -- long enough to exclude cases in which, say, DEA agents capture someone in Colombia and turn that person over to the Colombian government ASAP, but not longer than necessary) has the right to file for habeas corpus unless s/he was detained in the course of military conflict.

You have to understand that a habeus corpus petition requires the government to produce the body of the prisoner. Habeus corpus has to be denied if the government no longer has custody of the prisoner, because if the governmetn doesn't have him, he can't be produced. The consequence of this is that habeus corpus won't work if the government has turned the prisoner over to somebody else, like another government, regardless of how long the prisoner was held by the US before transfer. You might enjoin such a transfer before it happens, but after it happens, the habeus corpus remedy is unworkable. The only alternative is an action for damages, which of course is cold comfort to a prisoner in the hands of the government of Columbia.

"And your amazing knowledge of the role that "hatred" of the other side played in having us get played? Where does that come from?"

LOL! Reading the comments here, of course.

Concerning force feeding: I suffered from internal bleeding at one time and have since recovered. At it's worse I was losing lots from both ends. Late on a Friday evening, when my doctor determined by phone that I had progressed and was throwing up blood he instructed me to go to the emergency room and he wanted me admitted.

What I experienced there was very similar to force feeding. A little, not so experienced, nurse was running a tube down my nose and supposedly into my stomach so presumably they could measure how much I was losing. No drugs to make this experience more palatable (no pun intended) were administered. Well, something went wrong and the tube got jammed and she just kept on pushing tube in until my air passage was completely blocked and I could no longer breathe. I finally wrested it away from her and pulled it out to save myself.

Her response was that they would just have to do it over. It was extremely painful not to mention frightening and I refused to undergo the procedure again unless I was put to sleep. They said that wasn't possible, no anesthesiologist was available, I know, but that's what they said. The doctor said I was refusing treatment and thus would be dismissed and not admitted to the hospital. I argued that it wans't treatment, but an unnecessary diagnostic test that amounted to torture. They were going to abandon me when I pulled out a clipboard and requested that the emergency room doctor write down why he was refusing to admit me and gathering witnesses among wife and family.

That's when I got admitted and ultimately "cured" without anyone ever suggesting a need for that test again. My point is that it is so bad that I was willing to risk death rather than experience it again. I can't imagine what it would be like under the circumstances of Guantanamo, but I'm sure of one thing, it qualifies as torture and for someone to refuse, not so hard for me to understand, if you've had the experience. It is easy to throw rocks from your easy chair when you haven't experienced something. I would suggest visiting your local medical school and volunteering, they need subjects because they have to learn how to do it, then report back to us on it. I predict an entirely different perspective. There seems to be a real lack of empathy at work here for real people (albeit brown and of a different religious persuasion) who but for the accident of birth could be anybody, including you are me.

Well, Brett's argument would have more force if I'd been in any position to "be played" by Obama: (a) he's not my President and (b) I can, I think, fairly point to my cynicism over his vote to grant himself warrantless wiretapping powers...

I think there's a fair amount of truth to the assertion that Obama cared about becoming President much more than he cared about stopping or fixing or remedying any of the crimes committed by the Bush regime.

But, if I had been a US citizen, even if my cynicism about Obama's will to reform the US away from torture and kidnapping had been ten times more extreme (and, had I been a US citizen, it probably would have been), I would still have voted for Obama in November, because he was clearly the better candidate: finer far than McCain, and either of them so much better than Sarah Palin that it seems odd now we even have to mention them in the same sentence.

(To go more than slightly offtopic: how crappy for McCain to know that if he dies before January 2013, the world will breathe a sigh of renewed relief that he did not win last November, as a spectacle of President Palin dances in their head.)

For Republicans, blind loyalty to their chosen President may be a party requirment: it's usually that way with fascists. For democrats and liberals and other such messy, freedom-loving people, voting for a candidate merely increases your responsibility to critique what they're doing with the power you helped give them... or so I feel.

Hilzoy either disagrees, or sees no reason to critique Obama's condoning of torture, having consistently approved Obama's decision to continue Bush's military regime unaltered.

Hilzoy: Its soldiers are entitled to the rights of prisoners of war.

Has the Obama administration, by executive order or in any other way, explicitly said that prisoners taken from here on out in Afghanistan will be considered prisoners of war? That's different from saying they'll be "covered by the Geneva Conventions".

I'm asking because this issue has received very little coverage by human rights organizations or media, even in the wake of this court filing.

Hilzoy and CharleyCarp have probably read more of the Obama docs than most of us here, but my question is directed at anyone who can point me to relevant statements; thanks in advance.

Brett, having an NG tube inserted, even by a caring nurse, is horrendous. My nurse gave me water to lubricate its passage, said, "swallow, swallow, easy," as I frantically gulped like a haddock flipping about on dry land. It was a slow, searing pain going in and a fast searing pain coming out.

Ronald Reagan, you may recall, on graduating from his NG tube, said it was "like Christmas in July"--one time that he had my every sympathy.

Immediately on taking office, Obama should have sent a surprise inspection team to Guantanamo. It's a cruel disappointment that he is following so much of the Bush policy, and just as loathe to give up accrued executive power as Clinton or McCain would have been. He speaks of preserving the "institution of the Presidency". That institution seems to need preservation at the expense of the Constitution, it seems. I don't subscribe to the idea that a more benevolent dictator is satisfactory.

But do I have buyer's remorse, Brett? No. Obama is not what I had hoped, so far, but he's better than either don't-know-nothin-bout-the-economy McCain or conveniently warlike Iran-obliterating Hillary.

Jes, I am extremely concerned -- oh, hell, I'm angry as all get out -- about the extent to which people from the Bush era with major responsibility for prisoner conditions have been left in place.

I consider the recent Walsh report a whitewash, and invite those who think that recent improvements are adequate to characterize conditions as "humane" to read Andy Worthington's overview and the Center for Constitutional Rights' response to the Walsh report, 'Current Conditions of Confinement at Guantanamo'.

I'm sickened by the extent to which Obama and members of his administration have not only not gotten out in front of the right-wing propaganda designed to portray all the prisoners as dangerous and any release as risky, but actively participated in it.

One large and largely overlooked example: Obama's interview with Matt Lauer just before the Super Bowl was his first sit-down on U.S. television since the inauguration; it had, intentionally, an enormous audience. There is no way, then, to paint this from Obama as anything but a deliberate effort to feed the paranoia that has made release of the Uighurs into the U.S. difficult. Remember as you read that there are only about 250 prisoners total at Guantanamo: "we’ve got a couple of hundred [!!} of hardcore militants [!!] that, unfortunately, because of some problems that we had [!!]previously in gathering evidence, we may not be able to try in ordinary courts –- but we don’t want to release [!!]."

It's very hard to give someone the benefit of the doubt when he says something to one of the biggest TV audiences of the year that could have been said by Dick Cheney with a one-word change (Cheney would have said 'terrorist' for 'militant').

The failure to release the Uighurs into the U.S., the failure to drop the spiteful, last-minute appeal of their case filed by the Bush administration before the DC Circuit appeals court ruled, the refusal to consider release of any Guantanamo or Bagram prisoners into the U.S. while expecting other countries to step up because a bunch of nice words about no torture have been uttered, the continued abuse of the state secrets privilege to ditch an entire case: These anger and disgust me.

The British medical team that examined Mohamed last week found evidence of recent beatings. Beatings and abuse continue for those on hunger strike during "cell extraction", and for perceived acts of hostility on the part of prisoners. Extreme isolation of the kind that breaks down human beings is the regimen for those held in 'Camp Echo'/Camp 7, the "worst of the worst" transported to Guantanamo from CIA secret prisons, where they were tortured. They are denied even contact with military lawyers.

Efforts to end the hunger strike by actual communication with prisoners haven't even been considered. (I frankly hope Judge Gladys Kessler has nightmares about being force fed.) There's no word about when the new commander will take over. There have been no meetings with the defense lawyers, but a public meeting with the rightist operatives of Military Families United who spent the last few days screeching about Binyam Mohamed's long-overdue release, saying he was a "universally recognized terrorist."

So I'm not someone who thinks that there has been enough change, by a long damn shot, and I have my concerns about whether the Gates holdover is going to do more harm than good. This is a real issue, and it's appropriate to address it at ObWi.

But please try when raising it to make it less of a personal attack on Hilzoy, and particularly to avoid formulations of the "Hilzoy either thinks this, or this". We used to give Karnak penalties here for a good reason: they do not generate constructive discussion.

Brett, I'm not sure what you are trying to say. Are you telling us

(1) Torture and the like are a grim necessity that no responsible US President can forego (the position of most Bush supporters) or

(2) Our leaders are all so corrupt that we are going to have to reach a long way out of the establishment to get anyone who will end such policies or

(3) Something else and, if so, what.

Neglected to provide a link:

Andy Worthington overview of recent conditions at Guantanamo.

I'll choose curtain #2, Monty.

Alas, we've developed a self-perpetuating political class in this country, with interests and values quite distinct from the population at large. They've done a great job of setting things up so as to minimize the impact elections can have on policy. On some issues, they barely even pretend to care what the public thinks.

There is a political problem here hilzoy doesn´t mention in her post.

It´s how the rest of the world will be viewing it. Like it or not, places like Abu Ghraib, Guantanamo and Bagram have become symbols. Symbols for kidnapping, humiliation, (rape?), torture and murder. Or in US-speak "extraordinary renditions, enhanced interrogations and a few bad apples".

The Obama administration could have said something like "We oppose habeas corpus hearings right now because we´re already working on a system to give every detainee a fair hearing to determine his (or her?) status. Such a system will be in place in x weeks/months to ensure that we meet our obligations under international law."

You know, maybe exhausting themselves by writing five sentences or so. :)
And maybe backing that up with an outline on how they plan to do it.

By not doing that and simply backing the Bush administration policy...
Now that´s not exactly confidence inspiring, isn´t it?

Probably especially in Muslim countries. From what I´ve read Gaza already curbed somewhat the initial enthusiasm about Obama. How do you think they´ll react to this?

Assuming the Obama administration really wants to establish "a decent system for deciding which Bagram prisoners were rightly detained and which were not", they should have said something like that to the federal judge.


On another point. Why do I get error messages when I want to post comments using Firefox? "Preview" works but when I click "Post" I get an error message saying "We´re sorry, we cannot accept this data".

Detlef: On another point. Why do I get error messages when I want to post comments using Firefox? "Preview" works but when I click "Post" I get an error message saying "We´re sorry, we cannot accept this data".

I get it too: I figured it was due to my irritation with Hilzoy, but evidently it's bloody Six Apart software failing to play nicely with Firefox.

Nell, I admit that my disappointment with Hilzoy is larger than her position deserves: she's just a blogger. Still. Once upon a time Hilzoy used to write posts condemning Presidential endorsement of torture of prisoners, and was openly strongly against US extrajudicial imprisonment of your kidnap victims: now she doesn't and she isn't. This is sad, however you cut it.

Thanks, jesurgislac. Somehow nice to know that I´m not the only one having that problem. So, let´s use Opera as a substitute.
Back to the topic.
A little bit of needling allowed?

h/t Matthew Yglesias

The Washington director of Human Rights Watch can´t become the the assistant secretary in charge of the State Department Bureau of Democracy, Human Rights and Labor because of "Mr. Obama’s rules against lobbyists".
Although considered a "powerful choice" by many Democrats, "Mr. Malinowski was registered as a lobbyist to advocate for victims of genocide, torture and oppression, rather than moneyed interests, but that has not earned him a waiver."

However the Senior Vice President of Government Operations and Strategy working for Raytheon got a waiver immediately for a job as deputy Secretary of Defense.

Different priorities for the Obama administration?

"The only alternative is an action for damages, which of course is cold comfort to a prisoner in the hands of the government of Columbia."

Really, the university isn't as bad as some say.

"I get it too: I figured it was due to my irritation with Hilzoy, but evidently it's bloody Six Apart software failing to play nicely with Firefox."

I've found that either signing into Typepad, or if signed in, signing out and signing in again, will cure this.

I experience the 'we can't accept this data' message when I've taken a long time to compose a comment. Nowadays, if a comment is over three or four lines long, I'll copy it before previewing or posting just to be safe.

I find that if I reload the page, paste the comment back in, and quickly post (or preview and post), it goes through.

@Jes and any other Brits:

In another example of the stupid, petty, arbitrary cruelties to which the U.S. and U.K. governments will stoop where current and former prisoners are concerned:

British immigration are holding and planning to deport former GTMO prisoner Jarallah al-Marri, brother of Ali (familiar to ObWi readers):

a legal US resident, who has been held in the United States without charge or trial for over seven years, and has spent the last four years and eight months in horrendous solitary confinement as the only “enemy combatant” on the US mainland.

Jarallah al-Marri had just last month traveled to and within the UK as part of a public and publicized speaking tour organized by Cageprisoners, replacing Sami el-Hajj (whom the UK govt denied a visa). He made plans to return this week in order to talk with lawyers and human rights activists about Ali's case, and to possibly meet Binyam Mohamed, with whom he had been held for years at Guantanamo.

The excuse of British immigration authorities for holding and deporting him this time? He didn't mention on his visa form that he had been imprisoned at Guantanamo.

Contact info for calls to demand al-Marri be released and allowed to continue his planned visit is here.

Nell: "Has the Obama administration, by executive order or in any other way, explicitly said that prisoners taken from here on out in Afghanistan will be considered prisoners of war? That's different from saying they'll be "covered by the Geneva Conventions"."

To my knowledge, no. They have said that they will be treated in accordance with the standards of humane treatment in the GC, but that is, as you note, different.

Jes: my willingness to respond to what you say about me vanished sometime during the spring, when I got tired of the absolutely constant "Now that hilzoy has conclusively proven herself to be a sexist" which seemed to be appended to every fifth comment or so. It is not coming back now that that tag has been replaced with "now that hilzoy has revealed herself to be an apologist for torture."

It is not coming back now that that tag has been replaced with "now that hilzoy has revealed herself to be an apologist for torture."

but you look so cute in your apologist for torture outfit! ;-)

OT - there is a black man on the teevee who claims to be the president while giving a speech to a joint session of congress. strange times.

"However, it was neither me nor the federal courts that muddied the distinction..."

i totally disagree here, and i can't believe you'd say that.

clearly the syntax demands the nominative, not the accusative.
you should write:

"However, it was neither I nor the federal courts..."

i'm pretty shocked by your use of "me" here, hilzoy--i thought you were one of the right-thinking types on the issues that really matter.

kb: *hides head in shame. weeps softly.*

sorry--stupid jokes aside:

thank you for sorting out these complex issues in a way that makes it comprehensible for non-specialists.
even when there are no easy answers.

without your intervention, i would probably have misinterpreted the obama administration's actions as manifestly repugnant.
i'm still not thrilled, but i see it's a much harder call.

again: thank you.

kb: I was kidding. But: you're welcome. ;)

"i'm pretty shocked by your use of 'me' here, hilzoy--i thought you were one of the right-thinking types on the issues that really matter."

As Ms. O'Connor and Mr. Kellerman point out, English isn't Latin.

Me notes this also applies to splitting infinitives.

(Me still tends to be fussy, though, me notes.)

Now that´s not exactly confidence inspiring, isn´t it?

One thing that I find striking, and I have no idea whether it means anything, is that, as far as I can tell, the Obama administration hasn't advanced any arguments of its own during the various legal proceedings. All I think they've done is say they are letting the Bush arguments stand. Even in my worst interpretations of their intentions, I can't believe they think that the Bush arguments are valid.

As for Brett saying that it is clear that the Obama administration doesn't care at all about Binyan Mohammed, I think that that is belied by the fact that they have released him.

Hilzoy, your past willingness to campaign against Hillary Clinton using the sexist attacks being thrown at her was ...well, not exactly pleasant, but relatively speaking, trivial: you supported Obama, you accepted the media narrative about Clinton, Obama got the candidacy and won the election. You can let your annoyance at me for not liking your attacks on Clinton during the primaries go: once Obama got the candidacy, I endeavored to let my annoyance at you for your support of sexist attacks on Clinton go. But, you want to be a sore winner, fine.

The issue of Obama condoning torture - and your failure to ever blog this - is an ongoing problem for me. And will continue to be, I don't doubt, so long as you continue to try and find ways to assure yourself, if no one else, that it's not really a big problem that Obama isn't moving to clean out the practice of torture from US military, but is instead finding excuses to retain Bush's extra-judicial prisoners in illegal detention.

Obviously, the bigger issue is not your not blogging about it but Obama's not doing it. But yes: you write blog posts justifying the continuing detention of kidnap victims in extra-judicial imprisonment, and I'm... so not with you.

The Obama administration declined to drop the Bush administration's last-minute, spiteful appeal of Judge Urbina's October 2008 order to release the Uighurs into the United States.

They had two weeks in which to do so after Attorney General Holder took office on Feb. 3, the same day on which VP Biden said it was unlikely that any Guantanamo prisoners would be released into the United States.

So I don't think it's mindreading to conclude that Obama and Holder were hoping they would not be ordered by the courts to release the Uighurs into the U.S. The D.C. Circuit appeals court obliged, which was predictable given their record.

At Monday's Pentagon press briefing on his report on current conditions at Guantanamo, Adm. Walsh was explicit that the failure to release the Uighurs is increasing anxiety among other prisoners. Like everyone who knows anything about the prison, the inmates understand that the Uighurs represent the easiest case.

Some media coverage plays this as a Pentagon call for the Uighurs' release [link in a latter comment; I can't get at the cite right now]. Perhaps that will provide political cover of the type this administration seeks. For, as noted in my comment above, Obama has not only failed to undertake any effort to educate the public about the unthreatening nature of most of the current prisoners at Guantanamo, but has actively fed into the fearful propaganda line regarding them.

This has played right into the hands of Military Families United, a collection of right-wing operatives with whom he met a few weeks ago. Now they've used the long-overdue release of Binyam Mohamed to launch a TV ad campaign to increase public fear and misinformation about the release of Guantanamo prisoners. (The group has been helpfully promoted with three linkful posts in three days by ABC's White House correspondent Jake Tapper. Find it yourself; in this case I have the link close at hand but decline to legitimize fascists by providing it).

The plain fact is that our country is the only one in the world that has Uighur communities ready to welcome the prisoners and a government with much to gain from accepting them (specifically, the ability to look other countries in the eye while requesting them to take other freed Guantanamo prisoners).

Every minute that goes by without Obama taking that necessary decision adds to the doubts of those focused on what he does, rather than a hopeful interpretation of what he says.

Nell: Has the Obama administration, by executive order or in any other way, explicitly said that prisoners taken from here on out in Afghanistan will be considered prisoners of war? That's different from saying they'll be "covered by the Geneva Conventions".

Hilzoy: To my knowledge, no. They have said that they will be treated in accordance with the standards of humane treatment in the GC, but that is, as you note, different.

Damn. I was hoping I'd simply missed something. Your response is supported by Josh Hafetz, lawyer for the Bagram prisoners' suit that's the topic of this post:

[Prisoners of war] have certain rights to a process, an immediate process that they get when they're picked up on the battlefield to determine their status. They have a right to be free not only from torture, but from abusive treatment, humiliating treatment, any kind of coercion. And they have a right to release immediately upon the cessation of hostilities. Once the war is over, they have a right to be returned to their home.

...there are two different groups [at Bagram]. There are individuals who were seized in Afghanistan, and those individuals are not being treated in accordance with the Geneva Conventions...

It's time -- past time -- for the Obama administration to state clearly that persons seized in the course of hostilities in Afghanistan are prisoners of war and will be afforded the rights of traditional POWs.

They also need now, as Detlef said, to do more soon than simply a Friday-news-dump filing with no further context. That's almost designed to put the worst light on their approach to current Bagram prisoners.

There are really three categories of people in Bagram:

1- Combatants taken prisoner during the course of hostilities. These are standard POWs, and the administration should just say so and follow through on the required processes.

2 - Persons seized outside Afghanistan and taken to Bagram. The courts must treat such persons as they are treating prisoners at Guantanamo: They absolutely have habeas rights which no designation by the U.S. government can make disappear simply by taking them to a prison in a war zone that also contains genuine POWs.

3- Persons seized in Afghanistan but not combatants in the course of hostilities. This is the hideous underside of any counterinsurgency war, and applies also to too many prisoners held in U.S. military prisons in Iraq: people taken from nighttime raids on homes, or off the street, who at the time were not engaged in any form of combat or posing any threat to U.S. troops.

These cases, I would argue, require some review by competent authorities other than the military units doing the seizing, though I don't think that should come in the form of U.S. courts reviewing habeas petitions.

The "intelligence" used as the basis for rounding up "suspected insurgents" has been such crap, in both Iraq and Afghanistan, and the resulting prisoners have been held for so long without charges or process of any kind, that it's a recipe for abuse and for fueling actual insurgency further.

Why do I get this very uncomfortable feeling that most of the problem is about the scope of executive power, and that Barack Obama is NOT willing to relinquish what amounts to the considerable executive power that the Bush administration managed to increase during its stint ?
I am watching VERY CAREFULLY Barack Obama's attitude on the issue of executive power. I see no evidence as yet that he intends to relinquish one iota of it. I hope I'm wrong.
As far as the difficulty about differentiating military and civilian jurisdiction is concerned, in my book the major problem is...
the WAR on terror. Rather convenient vocabulary in my book for extending military jurisdiction EVERYWHERE on the planet.
And as I painfully repeat here from time to time, torture is going on all over in U.S. prisons. Not only in Guantanamo or in Bagram.
When will the torture on American soil stop ?
Any clues ?


With regard to prisoners in Iraq, there is a process whereby their cases are reviewed periodically for release by a board that does not include the capturing unit. I sat on one in 2007.

While the process might not be "competent" as you would refer to the term, at least the board I was on recommended the release of about a third of the 200 or so files we reviewed. It was a board that included US military and Iraqi civilians, with each person indepedently reviewing the files for evidence, and if it was not present or substantial, we recommended release. A recommendation of release was based on a simple majority of the 6 reviewers (3 US, 3 Iraqi).

Interestingly, being caught with a rifle was not seen as evidence of being an insurgent (because everyone there needs to be able to protect themselves), whereas IED parts would be much more likely to be seen as dangerous. And a cache of rifles rather than one per male would also be seen as more likely a danger.

I ran into one case that was egregious (in that the capturing unit asked for the guy to be released after a particular operation, but he was not until we reviewed the case). But for the most part there was a semblance of evidence tied with statements and photographs of the detainee with insurgent related equipment. Even when there was substantial evidence but the person was held for a significant amount of time (like 6 months) we often recommended release based on the person not likely to continue to be a threat because the situation had changed.

While all we had was the government's file, there was no prosecutor trying to influence the decisions, and no pressure or comments from anyone how to decide. And the American's on the board were different every week (I think the Iraqis were the same and were from the Human Rights Commission or something similar).

A JAG officer was a non-voting president of the board who could answer questions when we were unsure of a particular item, but had no other input.

As with all recommendations under military style law, the Commander did not have to follow them (which is true even with a conviction under UCMJ). Whether these recommendations were followed in every case is not known to me, but the intent was to let go the people who were no longer a threat, or never were a threat.

No, jrudkis, that sounds reasonably competent to me, and I'm glad you shared the information. Do you have a sense of how long a time would typically pass between imprisonment and review?


I think that varied: We started with relatively new files, and ended reviewing files that had been reviewed before. I would guess it was at least 6 weeks before the intial review, on average. Others we would review had been through the process with another board. These are the ones where we might say there was evidence, but the person had been held long enough without any steps to prosecute, and recommend release.

Thanks, JRudkis - that's information good to have, and sounds like a reasonable enough system under the circumstances. There may be potential for abuse in it, but as Nell says, it sounds reasonably competent and if a second review would tend to recommend release if there had been no steps to prosecute, prevents the kind of indefinite extrajudicial detention that creates injustice in itself.

It was also not the only system in place: the files would indicate whether the interrogator recommended release, which would hasten the process or even simply cause release with in the prison system reviews, and there was an overlay of Iraqi justice (which is where the prosecutions would take place, if they were going that route).

So the purpose of my board was a check on what the rest of the system was already doing to prevent having innocent people detained longer than necessary.

The delays, as far as I could tell, were often caused by a lack of translators and interrogators: once an interrogator determined that someone was an unlikely insurgent, they could be released.

Of the files I reviewed, the interrogators often recommended release either because they had no information, or were not a threat.

It was far from perfect, and it was hard to know what the right thing to do was in each case because we had limited information, but on the board I was on at least, we put the burden on the government to show something that was indicative of a real threat or crime.


I don't think we're going to know what the administration's thinking is until there is considerably more to go on. Signals are mixed at this point.

I'm inclined to believe that the motivation for some of the disappointing actions/inactions is not so much to keep every bit of the expansive executive powers asserted by the previous regime as it is a strong desire not to be undeniably confronted with evidence that would force the prosecution of previous administration officials until much, much later on (if ever). This was well expressed by Dahlia Lithwick recently as "Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head."

But I wouldn't say I have a mountain of evidence for my reading, just some good company. An equally plausible theory is that the new administration is simply proceeding extremely slowly and conservatively, with the idea that few of the unhappy results are irreversible and that this way of proceeding will minimize resistance from hard-liners in the intel/national security apparatus.

The fact that there is such a thing as "professional deformation", that people's views of these issues undergo powerful pressure to conform with the institutional realities of their jobs, is a reason not to discount your concern. Powers, once granted, are very rarely freely ceded back.

But I honestly expect to see the Obama DoJ taking positions in the not-too-distant future (by March 23 in the al-Marri case, for example) that reflect a less expansive view of executive power than the Bush-Cheney dictatorship model.

Your point about domestic torture is worth making. One example is that we're being habituated to the use of pain-inflicting devices simply to "secure compliance" by the spread of tasers to virtually every police force in the country.

It's being treated as a joke. Some people who'd be horrified if security guards tasered someone who heckled Bush thought "Don't tase me, bro" was hilarious because the victim was asking questions of John Kerry with attitude.

We have to end all torture. I know you're not bringing up domestic torture to make the argument that we shouldn't deal with any of it because we can't deal with all of it, though there have been commenters here who have. It's equally important not to let the its pervasiveness of human cruelty overwhelm you.

No, Nell, I am certainly not making that implication.
I live abroad, and if memory serves me, you do too.
I made a lot of connections in the U.S. this last summer after a 12 year absence.
That the number one effect of the "violent" (rather boring, I should say..) video games that were invented by the Pentagon psychologists to break down human ambivalence in the face of torture and massacre was to banalize torture and violent killing. Make it ho-hum. Acceptable, just the way lies can be repeated to the point that people will believe they are true.
I think that we are having these problems ABROAD BECAUSE we are already yawning at their presence at home.
Torture has become SOP in American prisons.
And it doesn't bother us very much at all. Not many of us, at any rate. The underlying idea being : if they're in prison, they're in prison for a reason, and the treatment they receive is a JUST REWARD for their bad behavior.
That's the reasoning, Nell.
From a finger-pointing culture.

I am pleased join the argument for an end to torture for detainees and even habeas rights. It seems so much more attainable than say, even "due process" for our own citizens in our own courts. Just saying, from a human rights perspective, God knows I don't have the legal authority/license to make such an observation, but it would be nice for someone to enjoy such protections even if it isn't our own citizens.

"No, Nell, I am certainly not making that implication.
I live abroad, and if memory serves me, you do too."

Nell doesn't live abroad.

That the number one effect of the "violent" (rather boring, I should say..) video games that were invented by the Pentagon psychologists to break down human ambivalence in the face of torture and massacre was to banalize torture and violent killing.
Sorry, what?

Also, this article from last October, which I haven't seen an update on, seems worth noting:

[...] The latest draft of the security agreement between the nations, if passed, would make one change clear at least: in a drastic reduction of the United States military’s power to control security in Iraq, American soldiers, acting on their own, would no longer be able to arrest insurgent suspects after Dec. 31. Under the proposed new rules, the United States military would need Iraqi permission to make arrests and then would have to turn suspects over to the Iraqi authorities within 24 hours.

Less clear, however, is what will happen to those already in detention — about 17,000 people in all.

In theory, the United States would no longer have the right to continue to hold them. And with the United States seeking to slowly phase out its mission in Iraq, American commanders say they are eager to close down a system that has proved to be a drain on cash and, after the revelations of torture at Abu Ghraib, American credibility.

“We’re getting out of the detention business,” said Brig. Gen. David Perkins, the spokesman for the American-led forces in Iraq.

I'd like to see an update, of course.

I stand by what I say about the purpose of those video games. Why they were invented. They stemmed from simulation games for military exercises. This info has been floating around for a long time, I'm sure that Amnesty International can tell you about it. And since YOU are certainly a more competent computer/Internet user than I, I'll allow you to go looking for it.
I might even add that American maximum security prisons implement the findings of psychologists in the 1950's. (René Spitz, in a study of what he called hospitalism.) Sensory deprivation induces mental breakdown. Sensory deprivation IS torture. The military have known this for a long long time. And been using it. And, this knowledge was implemented in the construction of the maximum security prisons in the U.S.
For "good" reasons, of course.
Keep 'em quiet. So that nobody gets hurt.
Well, few people get hurt, because not many are still alive from a psychological point of view. And, of course the mentally fragile drop in hecatombs from this kind of treatment. Which, in some cases is irreversible.

Gary, I'd like to call your attention to your own quote.
Look at it. "We're getting out of the detention BUSINESS".
Well, I'm waiting to see too.
Maybe the profits are just not what they used to be, huh ?

"I stand by what I say about the purpose of those video games. Why they were invented. They stemmed from simulation games for military exercises."

Which video games, specifically, are "those video games" that you're referring to, please?

"And since YOU are certainly a more competent computer/Internet user than I, I'll allow you to go looking for it."

That's very big of you. But I'd like to know what you're talking about, if you'd be so kind.

I'm not sure why you're directing any of the rest of your comments at me, given the many years I've sporadically blogged about horrific conditions in U.S. prisons.

Folks I know are watching for what the Administration does on March 13 with 'enemy combatant.' Is it going to include the little old lady is Switzerland?

The process jrudkis outlines is a positive step, but still no substitute for a trial. "Evidence" can include statements from a witness, which if examined in a broader context, would be seen as unreliable. Readers of the Wash Post Feb 3 edition will recall a Yemeni at GTMO who implicated scores of men, claiming to have seen them in places where, if you have all the info, you could show that neither of them were at the time. But you have to have the info, and you have to be looking for it.

"I stand by what I say about the purpose of those video games. Why they were invented. They stemmed from simulation games for military exercises."

Which video games, specifically, are "those video games" that you're referring to, please?

I'd still love a response to this, Debra.

CharleyCarp, for what case is the March 13 date? (I'm assuming that's a filing deadline.)

Is it in fact the exact same case in which someone representing the previous administration made the argument that a grandmother in Switzerland sending relief aid to an Islamic charity could be considered an "enemy combatant"? I'd never paid the kind of attention to court cases that I have in the last seven years, and I am still boggled by how slowly the wheels of justice turn...

that cool yo

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