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Entries in Guantanamo Bay (12)

Sunday
May242009

FBI Director Robert Mueller: 'Keep Away from Me' 

robert-mueller-6-27-08The “America is less safe” rhetoric of the former Vice President Dick Cheney has finally found a receptive ear in the Federal Bureau of Investigation.

FBI Director Robert Mueller told Congress on Wednesday that bringing Guantanamo Bay detainees to the US could pose some risks even if they were kept in maximum-security prisons. According to Mueller, these risks consist of “the radicalization of others” and “potential individual attacks in the United States".

[youtube]http://www.youtube.com/watch?v=TCfaOB7QvdQ[/youtube]

[youtube]http://www.youtube.com/watch?v=wwuI5ofIR3M[/youtube]
Saturday
May232009

Video and Analysis: The Obama Speech on National Security, 48 Hours Later

Much of the immediate comment in the US media was insipid or misleading or silly. On occasions, it was all three. The initial battle amongst observers to out-do each other for a Barack Obama v. Dick Cheney image --- "Mr Spock v. Jack Bauer", "Grandpa Vigilant Vs. Kid Nuance" --- was followed by attempts to set up Obama between "Right" and "Left" and, even worse, gleeful pronouncements by Bush Administration supporters that Obama was now just like Dubya.

Amongst the reactions, however, one set of commentaries stood out. Reinforcing our concern that Obama, while well-meaning, had put forth proposals which would not close Guantanamo but compound the legal difficulties of the detention regime, Peter Finn offered a penetrating analysis in The Washington Post "on indefinite detention without trial". This was accompanied by the excellent video critique of MSNBC's Rachel Maddow and, reprinted below that video, a thorough critique by Glenn Greenwald:

[youtube]http://www.youtube.com/watch?v=1uuWVHT1WUY[/youtube]

Facts and myths about Obama's preventive detention proposal


In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention."  It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions).  I'll have a podcast discussion on this topic a little bit later today with the ACLU's Ben Wizner, which I'll add below, but until then, here are some facts and other points worth noting:

(1) What does "preventive detention" allow?

It's important to be clear about what "preventive detention" authorizes.  It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding.  That class is merely a subset, perhaps a small subset, of who the Government can detain.  Far more significant, "preventive detention" allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally "dangerous" by the Government for various reasons (such as, as Obama put it yesterday, they "expressed their allegiance to Osama bin Laden" or "otherwise made it clear that they want to kill Americans").  That's what "preventive" means:  imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be "combatants."

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant."  After all, once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain "dangerous" people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly "dangerous" combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.


(2)
Are defenders of Obama's proposals being consistent?

During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush's executive power expansions by asking them:  "Do you really want these powers to be exercised by Hillary Clinton or some liberal President?"

Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama's proposal of "preventive detention," shouldn't you first ask yourself three simple questions:
(a) what would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it, and when right-wing groups such as Heritage Foundation were alone in urging a preventive detention law in 2004, did I support them?; and

(c) even if I'm comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents -- including Republicans -- having the power of indefinite "preventive detention"?

(3) Questions for defenders of Obama's proposal:

There are many claims being made by defenders of Obama's proposals which seem quite contradictory and/or without any apparent basis, and I've been searching for a defender of those proposals to address these questions:

Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts.  For anyone making that claim, what is the basis for believing that? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion.  What convinced you to believe that genuine terrorists can't be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are "dangerous" if they haven't been tried? Is the Government's accusation enough for you to assume it's true?

Above all:  for those justifying Obama's use of military commissions by arguing that some terrorists can't be convicted in civilian courts because the evidence against them is "tainted" because it was obtained by Bush's torture, Obama himself claimed just yesterday that his military commissions also won't allow such evidence ("We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods").  How does our civilian court's refusal to consider evidence obtained by torture demonstrate the need for Obama's military commissions if, as Obama himself claims, Obama's military commissions also won't consider evidence obtained by torture?

Finally, don't virtually all progressives and Democrats argue that torture produces unreliable evidence?  If it's really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence -- evidence we obtained by torture -- should be the basis for concluding that someone is so "dangerous" that they belong in prison indefinitely with no trial?  If you don't trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as "dangerous"?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to "preventive detention" and that his proposal therefore isn't radical ("other countries have grappled with this question; now, so must we").  Is that true?

In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question.  In the era of IRA bombings, the British Parliament passed a law allowing the Government to preventively detain terrorist suspects for 14 days -- and then either have to charge them or release them.  In 2006, Prime Minister Tony Blair -- citing the London subway attacks and the need to "intervene early before a terrorist cell has the opportunity to achieve its goals" -- wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days -- a mere two weeks more. Reacting to that extremely modest increase, a major political rebellion erupted, with large numbers of Brown's own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty.  Ultimately, Brown's 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:
It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention powers that are indefinite -- meaning without any end, potentially permanent.  There's no time limit on the "preventive detention."  Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do.  The suggestion that indefinite preventive detention without charges is some sort of common or traditional scheme is clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading.  And it's no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a "combatant" was thus minimal.  By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being "the worst of the worst" yet ended up being released because they did absolutely nothing wrong.  Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high?  For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now?  Here is what Anne-Marie Slaughter -- now Obama's Director of Policy Planning for the State Department -- said about Bush's "POW" comparison on Fox News in, November 21, 2001:
Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that "unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end" and that we'll still be fighting this "war" "a year from now, five years from now, and -- in all probability -- 10 years from now."  No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage.  That's why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:
[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

(6) Is it "due process" when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is.  What Obama is saying is this:  we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating.  For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process.  Those are called "show trials."  In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict.  The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite:  in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest).  The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

(7) Can we "be safe" by locking up all the Terrorists with no charges?

Obama stressed yesterday that the "preventive detention" system should be created only through an act of Congress with "a process of periodic review, so that any prolonged detention is carefully evaluated and justified." That's certainly better than what Bush did:  namely, preventively detain people with no oversight and no Congressional authorization -- in violation of the law.  But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn't make it justified.  As Professor Amann put it:  "no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty."  Dan Froomkin said that no matter how many procedures are created, that's "a dangerously extreme policy proposal."

Regarding Obama's "process" justification -- and regarding Obama's primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe -- Digby said it best:
We are still in a "war" against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be "the enemy" forever.  The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious. (It's nice that some sort of official committee will meet once in a while to decide if the war is over or if the prisoner is finally too old to still be a "danger to Americans.")

There seems to be some misunderstanding about Guantanamo. Somehow people have gotten it into their heads is that it is nothing more than a symbol, which can be dealt with simply by closing the prison. That's just not true. Guantanamo is a symbol, true, but it's a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn't solve the problem.

I know it's a mess, but the fact is that this isn't really that difficult, except in the usual beltway kabuki political sense. There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US. It's patently absurd to obsess over these guys like it makes us even the slightest bit safer to have them under indefinite lock and key so they "can't kill Americans."

The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our constitution and our justice systems is what fuels the idea that this country is weak and easily terrified. There is no such thing as a terrorist suspect who is too dangerous to be set free. They are a dime a dozen, they are all over the world and for every one we lock up there will be three to take his place. There is not some finite number of terrorists we can kill or capture and then the "war" will be over and the babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama's speech.  His resolve to close Guantanamo in the face of all the fear-mongering, like his release of the OLC memos, is commendable.  But the fact that a Democratic President who ran on a platform of restoring America's standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention -- something that is now sure to become a standard view of Democratic politicians and hordes of Obama supporters -- is by far the most consequential event yet in the formation of Obama's civil liberties policies.

UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's Jane Mayer in February:
"It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law," Craig said.  "Our presumption is that there is no need to create a whole new system. Our system is very capable."

"The first President of the United States to introduce a preventive-detention law" is how Obama's own White House Counsel described him.  Technically speaking, that is a form of change, but probably not the type that many Obama voters expected.

UPDATE II: Ben Wizner of the ACLU's National Security Project is the lead lawyer in the Jeppesen case, which resulted in the recent rejection by the 9th Circuit Court of Appeals of the Bush/Obama state secrets argument, and also co-wrote (along with the ACLU's Jameel Jaffer) a superb article in Salon in December making the case against preventive detention.  I spoke with him this morning for roughly 20 minutes regarding the detention policies proposed by Obama in yesterday's speech.  It can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly.

UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the topic of Obama's preventive detention proposal:




UPDATE IVThe New Yorker's Amy Davidson compares Obama's detention proposal to the internment of Japanese-Americans during World War II (as did Professor Amann, quoted above).  Johns Hopkins Professor Hilary Bok (aka Hilzoy) of The Washington Monthly writes:  "If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period" and "the power to detain people without filing criminal charges against them is a dictatorial power."  Salon's Joan Walsh quotes the Center for Constitutional Rights' Vincent Warren as saying:  "They’re creating, essentially, an American Gulag."  The Philadelphia Inquirer's Will Bunch says of Obama's proposal:  "What he's proposing is against one of this country's core principles" and "this is why people need to keep the pressure on Obama -- even those inclined to view his presidency favorably."

UPDATE V:  The Atlantic's Marc Ambinder -- who is as close to the Obama White House as any journalist around -- makes an important point about Obama that I really wish more of his supporters would appreciate:
[Obama] was blunt [in his meeting with civil libertiarians]; the [military commissions] are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.

Ambinder doesn't mean me personally or exclusively; he means people who are criticizing Obama not in order to harm him politically, but in order to pressure him to do better.  It's not just the right, but the duty, of citizens to pressure and criticize political leaders when they adopt policies that one finds objectionable or destructive.  Criticism of this sort is a vital check on political leaders -- a key way to impose accountability -- and Obama himself has said as much many times before.

It has nothing to do with personalities or allegiances.  It doesn't matter if one "likes" or "trusts" Obama or thinks he's a good or bad person.  That's all irrelevant.  The only thing that matters is whether one thinks that the actions he's undertaking are helpful or harmful.  If they're harmful, one should criticize them.  Where, as here, they're very harmful and dangerous, one should criticize them loudly.  Obama himself, according to Ambinder, "finds this outside pressure healthy and useful."  And it is.  It's not only healthy and useful but absolutely vital.

Friday
May222009

A Gut Reaction to the Obama National Security Speech: Getting Stuck in A "Long War"

Obama Speech on “National Security” at the National Archives (21 May)
Dick Cheney Speech on “National Security” at American Enterprise Institute (21 May)

obama41Halfway through President Obama's speech on national security, including torture, the Guantanamo Bay detention regime, and the tensions in transparency and state secrets, I thought:

He's nailed it. Flat-out nailed it.

Obama illuminated with flashes of rhetoric: "“We cannot keep this country safe unless we enlist the power of our most fundamental values." He used the setting of the National Archives, with America's founding documents: "We must never – ever – turn our back on [the Constitution's] enduring principles for expediency's sake." He turned inside-out the Bushian cloak of national security and "our boys" when he criticised waterboarding and other techniques of torture:

They undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts – they undermined them, and that is why I ended them once and for all.

In comparison to this powerful opening, the fear-mongering invocations, the evasions, and outright deceptions of Dick Cheney --- who is speaking as I type --- are not just tired and tiring excuses; they are close to obsolete.

But then, halfway through the speech, Obama got into trouble. Because it was then that he had to move from his powerful abstract of "values with security" to the realities of the Bushian policies that had wrenched them apart.

To solve the Guantanamo Bay riddle --- how to close the facility while maintaining the promise that not one "terrorist" would be free in America? --- Obama set out five categories of detainees. He was strongest when he spoke of the first category, those who would be tried in the US Federal criminal system: "Our courts and juries of our citizens are tough enough to convict terrorists, and the record makes that clear." And he was forthright on another category, the 21 detainees whose release has already been ordered by US judges: "The United States is a nation of laws, and we must abide by these rulings." He could just about get away with the category of 50 detainees who are not considered dangerous but who cannot be released to those home countries, setting aside the difficulty that no "third country" has yet accepted them.

But on two categories, Obama was vague to the point of contradiction. There are those who will be tried by the revived military commissions for "violations of laws of war". But which of the Guantanamo detainees are in this "war crimes" category? Is it the Al Qa'eda master planners like Khalid Shiekh Mohammed, whose terrorist actions do not fit the establshed category of war? Or is it Taliban commanders, who did wage war but did not necessarily carry out the atrocities --- which go far beyond fighting the US --- that are "war crimes"?

In fact, those above groups were covered in Obama's other, and most problematic category: "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people", expanded later by Obama in examples such as "people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans".

Obama's invocation of the category clearly covers cases, including that of Khalid Sheikh Mohammad, where the Bush Administration fouled up the possibility of successful prosecution through its mishandling of evidence and use of torture. however, the President's murkiness becomes evident when one notes the inclusion of Taliban commanders. As prisoners of war, they should have been released once the battle in Afghanistan was over, with the downfall of their movement at the end of 2001.

But there's the rub, isn't the it? The war is never over. Not in Afghanistan, and now Pakistan, where "Taliban" are still fighting the US. And not beyond Afghanistan and Pakistan where, from Asia to Europe to the American continent, Al Qa'eda is always a menace.

That "long war", even perpetual war, definition is not a relic from the past. Before the powerful rhetoric that initially entranced me, Obama laid the trap:
We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.

It was the current President, not the past one, who renewed the declaration of war: "For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan." And it was Obama, and only Obama, who concluded his speech:
Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and – in all probability – ten years from now.

This self-constructed admission --- we fight, we continue to fight, and we may always fight --- might explain why Obama's speech sagged badly in the second half as he discussed "transparency" vs. "security". To be honest, he should have left that section --- another attempt to justify both his decision to release the "torture memoranda" of the Bush Administration and his decision not to release photographs of abuse of detainees, his proposals to set guidelines for and oversight of "state secrets" --- at home. Although he may have the intention resolving this complex thicket, he gave the immediate game away when he said, in a time of "war", that he too can always invoke "national security": "Releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war."

More immediately, long/perpetual war ensures that Guantanamo --- maybe with 50 or 100 detainees rather than 240 --- remains open past Obama's initial January 2010. Long/perpetual war has ensured that the tension of "values vs. security" has been taken from facilities in Iraq to other facilities and battlefields in Central Asia. And, even as Obama criticises the "fear-mongering" of the past, he can set up a binary of extremes to justify this middle-ground long/perpetual war:
There are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who...suggest that the ends of fighting terrorism can be used to justify any means.

For me, this is an intelligent President. This is a President with good intentions. But this is a President who errs in his artificial juxtaposition of a misguided "focus on the past" with his preferred "focus on the future". He does so because --- hanging over the past, over the future, and over now --- are the perpetual tensions in his mission to "forge tough and durable approaches to fighting terrorism that are anchored in our timeless ideals".

Others like Dick Cheney will claim that their "tough and durable approaches" were right. Others like Obama's military commanders will claim that their "tough and durable approaches" are working. And so --- as Guantanamo drags on, as Camp Bagram in Afghanistan expands, as hope for America turns to hostility against America in other parts of the world --- "national security" will sit along more abuses and more deaths.
Thursday
May212009

Video and Transcript: Obama Speech on "National Security" at the National Archives (21 May)

A Gut Reaction to the Obama National Security Speech: Getting Stuck in A “Long War”
Dick Cheney Speech on “National Security” at American Enterprise Institute (21 May)



OBAMA: These are extraordinary times for our country. We are confronting an historic economic crisis. We are fighting two wars. We face a range of challenges that will define the way that Americans will live in the 21st century. There is no shortage of work to be done, or responsibilities to bear.

And we have begun to make progress. Just this week, we have taken steps to protect American consumers and homeowners, and to reform our system of government contracting so that we better protect our people while spending our money more wisely. The engines of our economy are slowly beginning to turn, and we are working toward historic reform of health care and energy. I welcome the hard work that has been done by the Congress on these and other issues.

In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. That is the first thing that I think about when I wake up in the morning. It is the last thing that I think about when I go to sleep at night.

This responsibility is only magnified in an era when an extremist ideology threatens our people, and technology gives a handful of terrorists the potential to do us great harm. We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.

Already, we have taken several steps to achieve that goal. For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We are investing in the 21st century military and intelligence capabilities that will allow us to stay one step ahead of a nimble enemy. We have re-energized a global non-proliferation regime to deny the world's most dangerous people access to the world's deadliest weapons, and launched an effort to secure all loose nuclear materials within four years. We are better protecting our border, and increasing our preparedness for any future attack or natural disaster. We are building new partnerships around the world to disrupt, dismantle, and defeat al Qaeda and its affiliates. And we have renewed American diplomacy so that we once again have the strength and standing to truly lead the world.

These steps are all critical to keeping America secure. But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall – the Declaration of Independence, the Constitution, the Bill of Rights –are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words – "to form a more perfect union." I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience sake.

I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right, but because it strengthens our country and keeps us safe. Time and again, our values have been our best national security asset – in war and peace; in times of ease and in eras of upheaval.

Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.

It is the reason why enemy soldiers have surrendered to us in battle, knowing they'd receive better treatment from America's armed forces than from their own government.

It is the reason why America has benefited from strong alliances that amplified our power, and drawn a sharp and moral contrast with our adversaries.

It is the reason why we've been able to overpower the iron fist of fascism, outlast the iron curtain of communism, and enlist free nations and free people everywhere in common cause and common effort.

From Europe to the Pacific, we have been a nation that has shut down torture chambers and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the injustice of disorder and destruction, America must demonstrate that our values and institutions are more resilient than a hateful ideology.

After 9/11, we knew that we had entered a new era – that enemies who did not abide by any law of war would present new challenges to our application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out.

Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions. And I believe that those decisions were motivated by a sincere desire to protect the American people. But I also believe that – too often – our government made decisions based upon fear rather than foresight, and all too often trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and our principles, we too often set those principles aside as luxuries that we could no longer afford. And in this season of fear, too many of us – Democrats and Republicans; politicians, journalists and citizens – fell silent.

In other words, we went off course. And this is not my assessment alone. It was an assessment that was shared by the American people, who nominated candidates for President from both major parties who, despite our many differences, called for a new approach – one that rejected torture, and recognized the imperative of closing the prison at Guantanamo Bay.

Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable – a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass. And that is why I took several steps upon taking office to better protect the American people.

First, I banned the use of so-called enhanced interrogation techniques by the United States of America.

I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I reject the assertion that these are the most effective means of interrogation. What's more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts – they undermined them, and that is why I ended them once and for all.

The arguments against these techniques did not originate from my Administration. As Senator McCain once said, torture "serves as a great propaganda tool for those who recruit people to fight against us." And even under President Bush, there was recognition among members of his Administration – including a Secretary of State, other senior officials, and many in the military and intelligence community – that those who argued for these tactics were on the wrong side of the debate, and the wrong side of history. We must leave these methods where they belong – in the past. They are not who we are. They are not America.

The second decision that I made was to order the closing of the prison camp at Guantanamo Bay.

For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of Military Commissions at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that: three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setbacks, cases lingered on, and in 2006 the Supreme Court invalidated the entire system. Meanwhile, over five hundred and twenty-five detainees were released from Guantanamo under the Bush Administration. Let me repeat that: two-thirds of the detainees were released before I took office and ordered the closure of Guantanamo.

There is also no question that Guantanamo set back the moral authority that is America's strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. Indeed, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law – a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

So the record is clear: rather than keep us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That is why I argued that it should be closed throughout my campaign. And that is why I ordered it closed within one year.

The third decision that I made was to order a review of all the pending cases at Guantanamo.

I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we do not have the luxury of starting from scratch. We are cleaning up something that is – quite simply – a mess; a misguided experiment that has left in its wake a flood of legal challenges that my Administration is forced to deal with on a constant basis, and that consumes the time of government officials whose time should be spent on better protecting our country.

Indeed, the legal challenges that have sparked so much debate in recent weeks in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release seventeen Uighur detainees took place last fall – when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place.

There are no neat or easy answers here. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. Our security interests won't permit it. Our courts won't allow it. And neither should our conscience.

Now, over the last several weeks, we have seen a return of the politicization of these issues that have characterized the last several years. I understand that these problems arouse passions and concerns. They should. We are confronting some of the most complicated questions that a democracy can face. But I have no interest in spending our time re-litigating the policies of the last eight years. I want to solve these problems, and I want to solve them together as Americans.

And we will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I've heard words that are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country. So I want to take this opportunity to lay out what we are doing, and how we intend to resolve these outstanding issues. I will explain how each action that we are taking will help build a framework that protects both the American people and the values that we hold dear. And I will focus on two broad areas: first, issues relating to Guantanamo and our detention policy; second, issues relating to security and transparency.

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal "supermax" prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: "The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational."

We are currently in the process of reviewing each of the detainee cases at Guantanamo to determine the appropriate policy for dealing with them. As we do so, we are acutely aware that under the last Administration, detainees were released only to return to the battlefield. That is why we are doing away with the poorly planned, haphazard approach that let those detainees go in the past. Instead, we are treating these cases with the care and attention that the law requires and our security demands. Going forward, these cases will fall into five distinct categories.

First, when feasible, we will try those who have violated American criminal laws in federal courts – courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and juries of our citizens are tough enough to convict terrorists, and the record makes that clear. Ramzi Yousef tried to blow up the World Trade Center – he was convicted in our courts, and is serving a life sentence in U.S. prison. Zaccarias Moussaoui has been identified as the 20th 9/11 hijacker – he was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee – al-Marri – in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania – bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do.

The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.

Now, some have suggested that this represents a reversal on my part. They are wrong. In 2006, I did strongly oppose legislation proposed by the Bush Administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process and rights for the accused that could stand up on appeal. I did, however, support the use of military commissions to try detainees, provided there were several reforms. And those are the reforms that we are making.

Instead of using the flawed Commissions of the last seven years, my Administration is bringing our Commissions in line with the rule of law. The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms – among others – will make our Military Commissions a more credible and effective means of administering justice, and I will work with Congress and legal authorities across the political spectrum on legislation to ensure that these Commissions are fair, legitimate, and effective.

The third category of detainees includes those who we have been ordered released by the courts. Let me repeat what I said earlier: this has absolutely nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have found that there is no legitimate reason to hold twenty-one of the people currently held at Guantanamo. Twenty of these findings took place before I came into office. The United States is a nation of laws, and we must abide by these rulings.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved fifty detainees for transfer. And my Administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These issues are fodder for 30-second commercials and direct mail pieces that are designed to frighten. I get it. But if we continue to make decisions from within a climate of fear, we will make more mistakes. And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future. I have confidence that the American people are more interested in doing what is right to protect this country than in political posturing. I am not the only person in this city who swore an oath to uphold the Constitution – so did each and every member of Congress. Together we have a responsibility to enlist our values in the effort to secure our people, and to leave behind the legacy that makes it easier for future Presidents to keep this country safe.

The second set of issues that I want to discuss relates to security and transparency.

National security requires a delicate balance. Our democracy depends upon transparency, but some information must be protected from public disclosure for the sake of our security – for instance, the movements of our troops; our intelligence-gathering; or the information we have about a terrorist organization and its affiliates. In these and other cases, lives are at stake.

Several weeks ago, as part of an ongoing court case, I released memos issued by the previous Administration's Office of Legal Counsel. I did not do this because I disagreed with the enhanced interrogation techniques that those memos authorized, or because I reject their legal rationale – although I do on both counts. I released the memos because the existence of that approach to interrogation was already widely known, the Bush Administration had acknowledged its existence, and I had already banned those methods. The argument that somehow by releasing those memos, we are providing terrorists with information about how they will be interrogated is unfounded – we will not be interrogating terrorists using that approach, because that approach is now prohibited.

In short, I released these memos because there was no overriding reason to protect them. And the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used.

On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and held accountable. There is no debate as to whether what is reflected in those photos is wrong, and nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment – informed by my national security team – that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war.

In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm's way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm's way.

In each of these cases, I had to strike the right balance between transparency and national security. This balance brings with it a precious responsibility. And there is no doubt that the American people have seen this balance tested. In the images from Abu Ghraib and the brutal interrogation techniques made public long before I was President, the American people learned of actions taken in their name that bear no resemblance to the ideals that generations of Americans have fought for. And whether it was the run-up to the Iraq War or the revelation of secret programs, Americans often felt like part of the story had been unnecessarily withheld from them. That causes suspicion to build up. That leads to a thirst for accountability.

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book. I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.

We are launching a review of current policies by all of those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers – especially when it comes to sensitive information.

Along those same lines, my Administration is also confronting challenges to what is known as the "State Secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents – Republican and Democrat – for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government. That is why my Administration is nearing completion of a thorough review of this practice.

We plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the State Secrets privilege. We will not assert the privilege in court without first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General. Finally, each year we will voluntarily report to Congress when we have invoked the privilege and why, because there must be proper oversight of our actions.

On all of these matter related to the disclosure of sensitive information, I wish I could say that there is a simple formula. But there is not. These are tough calls involving competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.

In all of the areas that I have discussed today, the policies that I have proposed represent a new direction from the last eight years. To protect the American people and our values, we have banned enhanced interrogation techniques. We are closing the prison at Guantanamo. We are reforming Military Commissions, and we will pursue a new legal regime to detain terrorists. We are declassifying more information and embracing more oversight of our actions, and narrowing our use of the State Secrets privilege. These are dramatic changes that will put our approach to national security on a surer, safer and more sustainable footing, and their implementation will take time.

There is a core principle that we will apply to all of our actions: even as we clean up the mess at Guantanamo, we will constantly re-evaluate our approach, subject our decisions to review from the other branches of government, and seek the strongest and most sustainable legal framework for addressing these issues in the long-term. By doing that, we can leave behind a legacy that outlasts my Administration, and that endures for the next President and the President after that; a legacy that protects the American people, and enjoys broad legitimacy at home and abroad.

That is what I mean when I say that we need to focus on the future. I recognize that many still have a strong desire to focus on the past. When it comes to the actions of the last eight years, some Americans are angry; others want to re-fight debates that have been settled, most clearly at the ballot box in November. And I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

I understand that it is no secret that there is a tendency in Washington to spend our time pointing fingers at one another. And our media culture feeds the impulses that lead to a good fight. Nothing will contribute more to that than an extended re-litigation of the last eight years. Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants – provided that it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. That, after all, is the unique genius of America. That is the challenge laid down by our Constitution. That has been the source of our strength through the ages. That is what makes the United States of America different as a nation.

I can stand here today, as President of the United States, and say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: if we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for those core values, then we are not keeping faith with the documents that are enshrined in this hall.

The Framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last two hundred and twenty two years. But our Constitution has endured through secession and civil rights – through World War and Cold War – because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way. It hasn't always been easy. We are an imperfect people. Every now and then, there are those who think that America's safety and success requires us to walk away from the sacred principles enshrined in this building. We hear such voices today. But the American people have resisted that temptation. And though we have made our share of mistakes and course corrections, we have held fast to the principles that have been the source of our strength, and a beacon to the world.

Now, this generation faces a great test in the specter of terrorism. Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and – in all probability – ten years from now. Neither I nor anyone else can standing here today can say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my Administration – along with our extraordinary troops and the patriotic men and women who defend our national security – will do everything in our power to keep the American people safe. And I do know with certainty that we can defeat al Qaeda. Because the terrorists can only succeed if they swell their ranks and alienate America from our allies, and they will never be able to do that if we stay true to who we are; if we forge tough and durable approaches to fighting terrorism that are anchored in our timeless ideals.

This must be our common purpose. I ran for President because I believe that we cannot solve the challenges of our time unless we solve them together. We will not be safe if we see national security as a wedge that divides America – it can and must be a cause that unites us as one people, as one nation. We have done so before in times that were more perilous than ours. We will do so once again. Thank you, God Bless you, and God bless the United States of America.
Thursday
May212009

The Great Congressional Bailout: Guantanamo (Part 2 --- Dan Froomkin)

The Great Congressional Bailout: Guantanamo (Part 1 — The Daily Show)
Keeping Guantanamo Open: Will Obama Give Way?

gitmo22It's now less than 15 minutes until President Obama's news conference on Guantanamo Bay, 30 minutes until former Vice President Dick Cheney launches his latest assault on the Administration (and, if you'll forgive the editorial comment, decency) with a speech at the American Enterprise Institute.

So in anticipation and as an extension of our commentary this morning, here is Dan Froomkin's excellent blog on The Washington Post website taking apart the Congressional bailout, particularly by Obama's Democrats, on Guantanamo:

With Friends Like These


Here's one thing that hasn't changed in the Obama era: Republicans are still able to come up with scare tactics that turn Senate Democrats into a terrified and incoherent bunch of mewling babies.

It's hard to imagine anything more ridiculous than the suggestion that bringing some of the terror suspects currently incarcerated in Guantanamo to high-security prisons in America will pose a threat to local communities.

It is nothing more than a bogeyman argument, easily refuted with a little common sense. (Isn't that what prisons are for?) But that's assuming you don't spend your every moment living in fear of Republican attack ads questioning your devotion to the security of the country. Or that you have a modicum of respect for the intelligence of the American public.

Ah well. Old habits die hard, I guess. And Senate Democrats apparently remain an easily frightened bunch, after eight years of faint-hearted submission.

Here's a question. Democratic congressional leaders ostensibly want to close Guantanamo, which they recognize has become the ultimate symbol of the Bush administration's violations of human rights. They acknowledge that keeping it open only makes the country less safe -- and that any number of the detainees there have been imprisoned sometimes cruelly and often under false pretenses, for as long as seven years. So they want all the detainees there to -- what? Vanish? Die? How do they expect any other country to take custody of anyone if we refuse to do it ourselves?

Worrying about releasing prisoners here is one thing. But refusing to even consider putting them in our prisons is nonsense. It it tantamount to insisting that Guantanamo stay open.

But as Shailagh Murray writes in The Washington Post: "Under pressure from Republicans and concerned about the politics of relocating terrorism suspects to U.S. soil, Senate Democrats rejected President Obama's request for funding to close the Guantanamo Bay prison and vowed to withhold federal dollars until the president decides the fate of the facility's 240 detainees...

"As recently as last week, Senate Democrats had hoped to preserve a portion of Obama's Guantanamo funding request. But their resolve crumbled in the face of a concerted Republican campaign warning of dire consequences if some detainees ended up in prisons or other facilities in the United States, a possibility that Defense Secretary Robert M. Gates has acknowledged."

Specifically, as the Associated Press is now reporting, the Senate voted 90 to 6 today for an amendment that would keep any detainee held in the Guantanamo prison from being transferred to the United States.

Here's the transcript of Senate Majority Leader Harry Reid's nonsensical news conference yesterday.

Reid: "I think there's a general feeling... that the American people, and certainly the Senate, overwhelmingly doesn't want terrorists to be released in the United States. And I think we're going to stick with that...."

Q. "No one's talking about releasing them. We're talking about putting them in prison somewhere in the United States."

Reid: "Can't put them in prison unless you release them."

Q. "Sir, are you going to clarify that a little bit? I mean -- "

Reid: "I can't -- I can't -- I can't make it any more clear than the statement I have given to you. We will never allow terrorists to be released in the United States. I think the majority -- I speak for the majority of the Senate....

Q. "[I]f a detainee is adjudicated not to be a terrorist, could that detainee then enter the United States?"

Reid: "Why don't we wait for a plan from the president? All we're doing now is nitpicking on language that I have given you. I've been as clear as I can. I think I've been pretty clear...."

Q. "But Senator, Senator, it's not that you're not being clear when you say you don't want them released. But could you say -- would you be all right with them being transferred to an American prison?"

Reid: "Not in the United States."

Q. (OFF-MIKE)

Reid: "I think I've had about enough of this."

Joseph Williams writes in the Boston Globe: "The decision to buck the president on Guantanamo left Democrats on the defensive and Republicans reveling at the discord....

"Caroline Frederickson, the director of the American Civil Liberties Union's Washington legislative office, said she and others...believe that the White House and Democrats are reacting to Republican fearmongering about terrorists on US soil.

"Any legitimate terror suspect, she said, would almost certainly be held in remote, high-security 'supermax' federal prisons, which are already home to convicted terrorists like British shoe bomber Richard Reid and Zacarias Moussaoui, the alleged 20th hijacker of the Sept. 11, 2001, terrorist attacks.

"'That's what these prisons are designed for,' she said."

David M. Herszenhorn writes in the New York Times: "On Tuesday Republicans, including the Senate minority leader, Mitch McConnell of Kentucky, who has been warning for weeks about the dangers of closing the prison, applauded the Democrats' decision.

"At a news conference, Mr. McConnell said he hoped it was a prelude to keeping the camp open and dangerous terrorism suspects offshore, where he said they belong."

Herszenhorn writes: "Administration officials have indicated that if the Guantánamo camp closes as scheduled more than 100 prisoners may need to be moved to the United States, including 50 to 100 who have been described as too dangerous to release.

"Of the 240 detainees, 30 have been cleared for release. Some are likely to be transferred to foreign countries, though other governments have been reluctant to take them. Britain and France have each accepted one former detainee. And while as many as 80 of the detainees will be prosecuted, it remains unclear what will happen to those who are convicted and sentenced to prison."

White House spokesman Robert Gibbs said yesterday that Obama will be giving a speech tomorrow on his Guantanamo plans, as well as other issues relating to detainees and detention policy.

"Thursday he'll outline his thoughts on detainee and detention issues, as well as the other issues like photos and memos," Gibbs said. "He'll outline the reasoning of why he strongly believes, and many in both parties believe, that closing Guantanamo Bay is in our best national security and foreign policy interest. And he will go through a number of the decisions related to that and other issues that we've discussed in the last few weeks that all relate to it."

Mike Allen and Jim VandeHei write for Politico: "Obama advisers are comparing Thursday's speech to his big-picture Georgetown University speech on the economy last month — not intended necessarily to produce 'hard news' but a sustained effort to describe and defend his policies and the political and intellectual assumptions behind them."

They also note that former vice president Cheney will be giving his own national-security speech tomorrow morning at the conservative American Enterprise Institute.

Glenn Greenwald blogs for Salon: "The 'debate' over all the bad and scary things that will happen if Obama closes Guantanamo and we then incarcerate those detainees in American prisons is so painfully stupid even by the standards of our political discourse that it's hard to put into words."

One key step in the process, Greenwald writes, entails "'Journalists' who are capable of nothing other than mindlessly reciting what they hear...depicting the Right's frightened neurosis as a Serious argument, and then overnight, a consensus emerges: Democrats are in big trouble politically unless they show that they, too, are as deeply frightened as the Right is."

Kevin Drum blogs for Mother Jones: "His own party won't support him against even the most transparent and insipid demagoguery coming from the conservative noise machine. The GOP's brain trust isn't offering even a hint of a substantive case that the U.S. Army can't safely keep a few dozen detainees behind bars in a military prison, but Dems are caving anyway. Because they're scared."

Also see Jon Stewart's take on the issue from last night's Daily Show.

Meanwhile, in a bit of related news, Josh Gerstein reports for Politico: "A federal judge has rejected aspects of the Obama administration's definition of who can legally be held as a prisoner in the war on terror.

"In a 22-page decision issued Tuesday evening, U.S. District Court Judge John Bates ruled that members in Al Qaeda or the Taliban could be detained, but that mere support for Al Qaeda activities is not a sufficient basis for the government to hold prisoners at Guantanamo Bay or elsewhere.

"Bates said he pressed the Justice Department to explain why rendering assistance to Al Qaeda was enough to lock someone up without criminal charges.

"'After repeated attempts by the Court to elicit a more definitive justification for the 'substantial support' concept in the law of war, it became clear that the government has none,' wrote Bates, who was appointed to the bench by President George W. Bush."

Nedra Pickler of the Associated Press takes a somewhat different view of the ruling, writing that the judge did allow the United States to hold some prisoners indefinitely.