Afghanistan: Obama Suspends the Rule of Law (Greenwald)

Glenn Greenwald writes in Salon:

Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram [the US detention facility in Afghanistan] does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world -- far away from any battlefield -- and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court.

Back in the day, this was called "Bush's legal black hole."  In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumediene v. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo.  Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention.

Afghanistan and Beyond: The Wicked Ideology of Counter-Insurgency (Mull)

Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram --- including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned.  Amazingly, the Bush DOJ [Justice Department] --- in a lawsuit brought by Bagram detainees seeking habeas review of their detention --- contended that if they abduct someone and ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind.  In other words, the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.


One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embraci.ng a key argument of former President Bush’s legal team"

But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held thatBoumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram.  I reviewed that ruling, in which Judge Bates explained that the Bagram detainees are "virtually identical to the detainees in Boumediene," and that the Constitutional issue was exactly the same: namely, "the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely".

But the Obama administration was undeterred by this loss.  They quickly appealed Judge Bates' ruling.  As the New York Times described that appeal:  "The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight."

Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind.  When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it "one of the worst decisions in the history of this country."  But Obama hailed it as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo," and he praised the Court for "rejecting a false choice between fighting terrorism and respecting habeas corpus".  Even worse, when Obama went to the Senate floor in September, 2006, to speak against the habeas-denying provisions of the Military Commissions Act, this is what he melodramatically intoned:

As a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence....

By giving suspects a chance --- even one chance --- to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit....

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer.  But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

Can you smell the hypocrisy?  How could anyone miss its pungent, suffocating odor?  Apparently, what Obama called "a legal black hole at Guantanamo" is a heinous injustice, but "a legal black hole at Bagram" is the Embodiment of Hope.  And evidently, Obama would only feel "terror" if his child were abducted and taken to Guantanamo and imprisoned "without even getting one chance to ask why and prove their innocence".

But if the very same child were instead taken to Bagram and treated exactly the same way, that would be called Justice -- -or, to use his jargon, Pragmatism.  And what kind of person hails a Supreme Court decision as "protecting our core values" --- as Obama said of Boumediene --- only to then turn around and make a complete mockery of that ruling by insisting that the Cherished, Sacred Rights it recognized are purely a function of where the President orders a detainee-carrying military plane to land?

Independently, what happened to Obama's eloquent insistence that "restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe"?  How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States?  If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?

One other point:  this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the [Elena] Kagan-for-[John Paul] Stevens replacement could be.  If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed.  More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is whatBoumediene was, with Stevens in the majority) into a 5-4 defeat.  Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?

This is what Barack Obama has done to the habeas clause of the Constitution:  if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantanamo, then you have the right to have a federal court determine if there is sufficient evidence to hold you.  If, however, President Obama orders that you be taken to from Thailand to Bagram rather than to Guantanamo, then you will have no rights of any kind, and he can order you detained there indefinitely without any right to a habeas review.  That type of change is so very inspiring --- almost an exact replica of his vow to close Guantanamo...all in order to move its core attributes (including indefinite detention) a few thousand miles north to Thompson, Illinois.

Real estate agents have long emphasized "location, location, location" as the all-determining market factor.  Before we elected this Constitutional Scholar as Commander-in-Chief, who knew that this platitude also shaped our entire Constitution?

UPDATE:  Law Professor Steve Vladeck has more on the ruling, including "the perverse incentive that today's decision supports," as predicted by Justice [Antonin] Scalia in his Boumediene dissent:  namely, that a President attempting to deny Constitutional rights to detainees can simply transfer them to a "war zone" instead of to Guantanamo and then claim that courts cannot interfere in the detention.  Barack Obama quickly adopted that tactic for rendering the rights in Boumediene moot --- the same rights which, less than two years ago, he was praising the Supreme Court for safeguarding and lambasting the Bush administration for denying.  Vladeck also explains why the appellate court's caveat -- that overt government manipulation to evade habeas rights (i.e., shipping them to a war zone with the specific intent of avoidingBoumediene) might alter the calculus -- is rather meaningless.

UPDATE II:  Guest-hosting for Rachel Maddow last night, Chris Hayes talked with Shayana Kadidal of the Center for Constitutional Rights about the Bagram ruling and Obama's hypocrisy on these issues, and it was quite good, including a video clip of the 2006 Obama speech I excerpted above:

Visit msnbc.com for breaking news, world news, and news about the economy

And in The New York Times, Charlie Savage has a typically thorough examination of the impact of the ruling.  As he writes:  "The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight."  But GOP Sen. Lindsey Graham (author of the habeas-denying provision in the Military Commissions Act) "called the ruling a 'big win' and praised the administration for appealing the lower court’s ruling", and that's what really matters.

US "War on Terror" Math: Guantanamo Shutdown = More Pakistan Drone Strikes

From the first days of the Obama Administration, we've how US agencies --- especially the Pentagon --- have waged a campaign to prevent the President's promise to close the Guantanamo Bay prison from becoming reality. This, however, may be the most creative line....

If we close Guantanamo, we will have to kill many more people with drone strikes in Pakistan.

This week Adam Entous of Reuters posted an article, "How the White House Learned to Love the Drone", with revelations such as, "An analysis of data provided to Reuters by U.S. government sources shows that the CIA has killed around 12 times more low-level fighters than mid-to-high-level al Qaeda and Taliban leaders since the drone strikes intensified in the summer of 2008." (The article also notes that even more civilians than "fighters" --- 20 to 150% more --- also die.)


These paragraphs jump out:

Some current and former counterterrorism officials say an unintended consequence of these decisions may be that capturing wanted militants has become a less viable option. As one official said: "There is nowhere to put them."

A former U.S. intelligence official, who was involved in the process until recently, said: "I got the sense: 'What the hell do we do with this guy if we get him?' It's not the primary consideration but it has to be a consideration."

Of course, there is a boiler-plate denial from a "senior US official", who claims, "Any comment along the lines of 'there is nowhere to put captured militants' would be flat wrong. Over the past 16 months, the U.S. has worked closely with its counterterrorism partners in South Asia and around the world to capture, detain, and interrogate hundreds of militants and terrorists."

The cold fact remains that President Obama has not tolerated the drone strikes --- he has embraced and increased them.

Now to the colder political question on the other side of the world. Even though the Guantanamo shutdown = more strikes rationale is flimsy --- where is the evidence that those released from Camp X-Ray would be dashing off to Pakistan? And what of the alternatives such as actually trying these supposed terrorists in a civilian courtroom? --- that doesn't mean it will disappear.

So, under the rationale that its existence means the US won't kill quite as many people in Pakistan (even American officials say that only 39 of 500 killed by the drone strikes were "high-" or "mid-level" targets), will Guantanamo still be standing as global testimony to US justice this time next year?

Afghanistan-Pakistan Revealed: America's Private Spies

During the Bush years, authors such as Jeremy Scahill and Tom Engelhardt documented how the US Department of Defense turned to private companies for intervention and occupation. The most notorious of these cases were the activities of Blackwater and the "outsourcing" of interrogation and torture to private companies at Abu Ghraib in Iraq. Beyond this was a systematic increase in the place of private firms in day-to-day military and covert operations: it has been estimated that half of the US forces in Afghanistan are employed by private concerns.

You might think, given the public declarations of the Obama Administration that it is distinct from its predecessors, that this approach would have been curtailed.

Afghanistan Analysis: Diplomatically Clinging to Guns and Counterinsurgency (Mull)

You are wrong.


On Sunday, Mark Mazzetti wrote in The New York Times:

Top military officials have continued to rely on a secret network of private spies who have produced hundreds of reports from deep inside Afghanistan and Pakistan, according to American officials and businessmen, despite concerns among some in the military about the legality of the operation.

Earlier this year, government officials admitted that the military had sent a group of former Central Intelligence Agency officers and retired Special Operations troops into the region to collect information — some of which was used to track and kill people suspected of being militants. Many portrayed it as a rogue operation that had been hastily shut down once an investigation began.

But interviews with more than a dozen current and former government officials and businessmen, and an examination of government documents, tell a different a story. Not only are the networks still operating, their detailed reports on subjects like the workings of the Taliban leadership in Pakistan and the movements of enemy fighters in southern Afghanistan are also submitted almost daily to top commanders and have become an important source of intelligence.

The American military is largely prohibited from operating inside Pakistan. And under Pentagon rules, the army is not allowed to hire contractors for spying.

Earlier revelations by The Times led to an investigation of a contractor network run by Michael D. Furlong. Mazzetti updates:

A review of the program by The New York Times found that Mr. Furlong’s operatives were still providing information using the same intelligence gathering methods as before. The contractors were still being paid under a $22 million contract, the review shows, managed by Lockheed Martin and supervised by the Pentagon office in charge of special operations policy....

A senior defense official said that the Pentagon decided just recently not to renew the contract, which expires at the end of May. While the Pentagon declined to discuss the program, it appears that commanders in the field are in no rush to shut it down because some of the information has been highly valuable, particularly in protecting troops against enemy attacks.

So what's the big deal here? After all, you can always fly the flag of "protection". Well, there could be the issue of accountability:

In general, according to one American official, intelligence operatives are nervous about the notion of “private citizens running around a war zone, trying to collect intelligence that wasn’t properly vetted for operations that weren’t properly coordinated.”

And although no one seems to have considered it in the Mazzetti article, there might be some Afghans and Pakistanis --- not all of them bad guys --- who are nervous as well.

UPDATED Iran Follow-Up: Ahmadinejad "Bin Laden Lives in Washington DC!"

UPDATE, 6 MAY: State Department Looks Around, Doesn't Find Bin Laden, Does Find Sense of Humour. I feel better now about my fellow Americans.

P.J. Crowley must have thought about his po'-faced, huffy comment on Twitter, as he decided that light-hearted was a better approach in a Washington press conference: "We've done an intensive search here at the Department of State -- every nook and cranny, every rock -- and we can safely report that Osama bin Laden is not here."

Iran: Bin Laden Lives in Tehran Shocker!

UPDATE 1900 GMT: Oh, dear, I think the US State Department has had a satire failure. Spokesman P.J. Crowley has just sniffed on Twitter, "Ahmadinejad says bin Laden is in DC. We don’t have him; what we do have is another wild Iranian accusation and no accountability."

P.J., you do know that Iranians have been known to pull the leg and tweak the nose of an obtuse interviewer, right?


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From the ridiculous to the even more ridiculous....

Yesterday we had a bit of fun with Fox News' puffed-up, straight-faced "report" that Osama Bin Laden might be living the high life in Tehran. We thought this might be a one-day diversion, since this is not a real news story, but little did we know that George Stephanopoulos, former aide to Bill Clinton and host of ABC Television's Good Morning America, would take it to new levels of absurdity.

Closing his two-dimensional interview with Mahmoud Ahmadinejad, Stephanopoulos decided to spring an interrogator's surprise (since, presumably, Mahmoud does not watch Fox News):

STEPHANOPOULOS: One final question. There's a new documentary out that says that Osama Bin Laden is living in Tehran. And the subject of the documentary, a man named Alan Parrot, one of the world's foremost falconers living in Iran, says he's spoken to Osama bin Laden several times since 2003. Is Osama bin Laden in Tehran?

AHMADINEJAD: Your question is laughable.

STEPHANOPOULOS: Why?

AHMADINEJAD: The U.S. government has invaded Afghanistan in order to arrest Bin Laden. They probably know where Bin Laden is. If they don't know he is, why did they invade? Could we know the intelligence?

STEPHANOPOULOS: I think if they knew, they would find him. They would get him.

AHMADINEJAD: First they should have tried to find his location, then invade, those who did not know about his location first they invaded and then they tried to find out where he is, is that logical? Do you think this is logical?

STEPHANOPOULOS: What I think is that you didn't answer my question. Is he in Tehran or not?

AHMADINEJAD: Our position is quite clear. Some journalists have said Bin Laden is in Iran. These words don't have legal value. Our position towards Afghanistan and against terrorism is quite clear.

STEPHANOPOULOS: Is it true or not?

AHMADINEJAD: Maybe you know, but I don't know.

STEPHANOPOULOS: I'm asking you. You're the President of Iran.

AHMADINEJAD: I don't know such a thing, you are giving news which is very strange.

STEPHANOPOULOS: So, let me ask it a different way. If you did know that Osama bin Laden was in Tehran, would you show him hospitality? Would you expel him? Would you arrest him?

AHMADINEJAD: I heard that Osama bin Laden is in the Washington, D.C.

STEPHANOPOULOS: No, you didn't.

AHMADINEJAD: Yes, I did. He's there. Because he was a previous partner of Mr. Bush. They were colleagues in fact in the old days. You know that. They were in the oil business together. They worked together. Mr. Bin Laden never cooperated with Iran but he cooperated with Mr. Bush--

STEPHANOPOULOS: I'll ask one more time and then I'll let you go. If you knew that Osama bin Laden was in Tehran, which you say you don't. If you knew, would you expel him? Would you arrest him? Would you show him hospitality?

AHMADINEJAD: Our borders, our borders are closed to the illegal entry of anyone. Anyone who that may be. Whether it's the three American mountaineers, Mr. Bin Laden or anyone else. The borders are closed. Our position is clear.

I'm quite surprised, to see that you adjust your daily lives based on the news that is being broadcast. I'm concerned that the government of the United States takes positions based on such news. If it is so, it is too bad. The news must be accurate and accountable, otherwise it will disrupt the relations between the nations. Just like this, did the government of the United States knew about the location of Mr. Bin Laden? And you said, "No, they went to find out." Well, first you locate--

STEPHANOPOULOS: They lost the trail.

AHMADINEJAD: --to find out they have invaded Afghanistan. First they have to find out his location and then invade. It's like for a judge to arrest someone and then go after the evidence.

STEPHANOPOULOS: But you deny categorically that he's in Tehran today? He is not-- Osama bin Laden is not in Tehran today?

AHMADINEJAD: Rest assured that he's in Washington. I think there's a high chance he's there.

STEPHANOPOULOS: I don't agree.

Thank you for your time, Mr. President.

Obama's War on Terror: Pressuring Journalists, Fighting for Secrecy

Presidential candidate Barack Obama campaigned for accountability in the US Government's foreign policy, even in campaigns against adversaries. President Obama, in his Inaugural Speech, pronounced, "We reject as false the choice between our safety and our ideals."



Let's see how all this is turning out, shall we? From Charlie Savage in The New York Times on 29 April:

The Obama administration is seeking to compel a writer to testify about his confidential sources for a 2006 book about the Central Intelligence Agency, a rare step that was authorized by Attorney General Eric H. Holder Jr.

The author, James Risen, who is a reporter for The New York Times, received a subpoena on Monday requiring him to provide documents and to testify May 4 before a grand jury in Alexandria, Va., about his sources for a chapter of his book, “State of War: The Secret History of the C.I.A. and the Bush Administration.” The chapter largely focuses on problems with a covert C.I.A. effort to disrupt alleged Iranian nuclear weapons research.



Mr. Risen referred questions to his lawyer, Joel Kurtzberg, a partner at Cahill Gordon & Reindel L.L.P., who said that Mr. Risen would not comply with the demand and would ask a judge to quash the subpoena.

“He intends to honor his commitment of confidentiality to his source or sources,” Mr. Kurtzberg said. “We intend to fight this subpoena.”

The subpoena comes two weeks after the indictment of a former National Security Agency official on charges apparently arising from an investigation into a series of Baltimore Sun articles that exposed technical failings and cost overruns of several agency programs that cost billions of dollars.

The lead prosecutor in both investigations is William Welch II. He formerly led the Justice Department’s public integrity unit, but left that position in October after its botched prosecution of Senator Ted Stevens of Alaska.

Matthew A. Miller, a Justice Department spokesman, declined to discuss the subpoena to Mr. Risen or to confirm its existence. “As a general matter, we have consistently said that leaks of classified information are a matter we take extremely seriously,” he said.

Mr. Risen and a colleague won a Pulitzer Prize for a December 2005 New York Times article that exposed the existence of the National Security Agency’s warrantless surveillance program. While many critics — including Barack Obama, then a senator — called that program illegal, the Bush administration denounced the article as a damaging leak of classified information and opened an investigation into its sources. No one has been indicted in that matter.

The second chapter in Mr. Risen’s book provides a detailed description of the program. But Mr. Kurtzberg said the Justice Department was seeking information only about Mr. Risen’s sources for the ninth chapter, which centers on the C.I.A.’s effort to disrupt Iranian nuclear research. That material did not appear in The Times.

The book describes how the agency sent a Russian nuclear scientist — who had defected to the United States and was secretly working for the C.I.A. — to Vienna in February 2000 to give plans for a nuclear bomb triggering device to an Iranian official under the pretext that he would provide further assistance in exchange for money. The C.I.A. had hidden a technical flaw in the designs.

The scientist immediately spotted the flaw, Mr. Risen reported. Nevertheless, the agency proceeded with the operation, so the scientist decided on his own to alert the Iranians that there was a problem in the designs, thinking they would not take him seriously otherwise.

Mr. Risen described the operation as reckless, arguing that Iranian scientists may have been able to “extract valuable information from the blueprints while ignoring the flaws.” He also wrote that a C.I.A. case officer, believing that the agency had “assisted the Iranians in joining the nuclear club,” told a Congressional intelligence committee about the problems, but that no action was taken.

It is not clear whether the Iranians had figured out that the Russian scientist had been working for the C.I.A. before publication of Mr. Risen’s book.

The Bush administration had sought Mr. Risen’s cooperation in identifying his sources for the Iran chapter of his book, and it obtained an earlier subpoena against him in January 2008 under Attorney General Michael B. Mukasey. But Mr. Risen fought the subpoena, and never had to testify before it expired last summer. That left it up to Mr. Holder to decide whether to press forward with the matter by seeking a new subpoena.

If a judge does not agree to quash the subpoena and Mr. Risen still refuses to comply, he risks being held in contempt of court. In 2005, a Times reporter, Judith Miller, was jailed for 85 days for refusing to testify in connection with the Valerie Plame Wilson leak case.

Department rules say prosecutors may seek such subpoenas only if the information they are seeking is essential and cannot be obtained another way, and the attorney general must personally sign off after balancing the public’s interest in the news against the public’s interest in effective law enforcement.

Congress is considering legislation that would let judges make that determination, giving them greater power to quash subpoenas to reporters. The Obama administration supports such a media-shield bill, and the House of Representatives has passed a version of it. But a Senate version has been stalled for months.