On Thursday, President Bush - who appears never to tire of the fear-mongering schtick that has been the trademark of his administration - once again gave condescending voice to the thorough contempt he apparently feels for the public and the Constitution. Unlike the Senate, the House of Representatives has not (yet) knuckled under to his demand that blanket immunity be provided for telecommunications companies that broke the law to assist the government in illegal spying on Americans. In response, Mr. Bush and his backers have continued to not only lie outright about what exactly is at stake, but launch some of the cheeziest and misleading political advertising ever to blight the airwaves:
The president's assertion that we should inherently trust faceless civil service functionaries because "civil liberties [are] protected by analysts 'and treated with respect,'" is laughable on its face, and as has been well-documented elsewhere and in earlier posts, Mr. Bush's broader arguments in favor of letting pet lawbreakers off the hook are total hogwash. Rather than rehash the dry reasoning behind that well-supported assertion, however, why don't we just let Mark Fiore's Snuggly the Security Bear explain it?
Last month, I wrote a post entitled Lessons from Nicaragua that examined the case of Eric Volz, an American entrepreneur who was railroaded into a Central American prison sentence on a trumped-up murder charge. Mr. Volz was eventually released, but only after a group of appeals judges stood up for the rule of law. While Mr. Volz is now back in the United States - unable to clear his name in Nicaragua - those same judges have faced death threats and the promise of intervention from authoritarian elements in the Nicaraguan federal government.
Despite the opinions of several blog trolls, the central theme of that post was clearly not to blame President Bush for Eric Volz's problems, but rather to point out what can - and does - happen to people in countries where the judicial system has been compromised by political influence and equality before the law does not exist. As I wrote in January:
... Far from being merely an exceptionally sordid episode of Third World corruption, however, the Volz case should serve as an object lesson in the perils of subverting the justice system of any country. Without the rule of law, convictions and prosecutions can be bought and sold, and naked political ambition given a veneer of legitimacy through apparent judicial approval, however flawed.
On Sunday, CBS's 60 Minutes broadcast a story on former Alabama governor Don Siegelman that shockingly illustrates the fact that political imprisonment has taken root here in the United States. Mr. Siegelman was the most successful Democrat in a Republican state, but during the time he was governor, the U.S. Department of Justice repeatedly investigated him for years at a time, until finally, he was convicted of bribery. Today however, members of both political parties are expressing strong reservations about the motivations and methods underlying the investigation and prosecution of Don Siegelman by the Justice Department. A whistle-blower has testifed under oath that former Deputy White House Chief of StaffKarl Rove was behind efforts to remove the former governor from the political playing field; fifty-two former state attorneys-general have asked Congress to investigate whether charges against Siegelman were pursued not because of a crime, but because of politics; and today, in the wake of the 60 Minutes report, Mr. Siegelman's attorneys have requested the appointment of a special prosecutor to look into the apparent suppression of evidence by the prosecution.
Further roiling the clouds surrounding this case are new reports that Dana Simpson, the attorney who testified against Mr. Rove, has been the subject of smear campaigns by the state Republican party, and that the 60 Minutes segment on Governor Siegelman - and only that segment of the program - was blacked out during broadcast in much of Alabama, supposedly due to a technical problem that no one can substantiate. (The local affiliate is owned by an active G.O.P. supporter.) Prior to her testimony, Ms. Simpson's house was burned down and her car forced off the road by another driver, leading her to state with apparent justification, "I don't feel safe." Nonetheless, Ms. Simpson continues to rightly point out that she spoke to Congress under oath, but that Mr. Rove couldn't even be bothered to appear, and is now in contempt of Congress.
To be blunt, while nothing has yet been proven, there is every indication that Mr. Siegelman is in jail because he is a Democrat who could not be unseated by the Republican Party in Alabama using legitimate means. There is also every sign of prosecutorial misconduct, direct involvement from the White House, and the further disintegration of the American rule of law. And while George W. Bush cannot be blamed for the tribulations of Eric Volz, he can most certainly be blamed for the trials of Don Siegelman.
The video of the 60 Minutes segment on Don Siegelman is below:
To be sure, this trainwreck was inevitable from the moment the Administration painted the United States into a human rights corner by constructing an offshore prison camp for the sole purpose of keeping the people held there in legal limbo. At this point, there are no good options, and we should be perfectly clear about what is going to happen: there is no outcome under which any of the six men tried will be released. None. It will not happen, because even if - by some extraordinary circumstance - they are not convicted, the United States cannot set them free. They will either be held pending further "investigation" and charges, denied release because no other country of which we approve will take them in, or die mysteriously either in custody or "escaping." This is the very definition of a show trial.
I made that statement based on a logical evaluation of the facts and the observation of past Bush Administration behavior. As it turns out, however, Colonel Morris Davis, the former chief prosecutor for the Office of Military Commissions, has made the same assessment, but whatever small measure of satisfaction I might have taken in having my beliefs endorsed is swamped by the complete and utter revulsion I feel toward the circumstances that provide this validation. Specifically, Colonel Davis resigned his post when it became clear to him that the trials at Guantanamo Bay would not be permitted to produced acquittals, no matter the evidence or lack thereof.
Earlier this year, Susan Crawford was appointed by the Secretary of Defense to replace Major General John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.
How can you direct someone to do something - use specific evidence to bring specific charges against a specific person at a specific time, for instance - and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.
The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, "Trust me, you would have been impressed if only you could have seen what we did in the courtroom" will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.
Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.
I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.
Colonel Davis concludes his piece by stating that he believes that the military commissions system can serve as the basis for fair and impartial proceedings, but that significant changes must be made before that can occur. All in all, his article is a reasonable explanation and a forthright declaration of professional differences, but in the intervening weeks, Colonel Davis has revealed that he was pressured by "politically motivated officials at the Pentagon" to pursue the prosecution of "sexy" cases in the run-up to the 2008 elections, noting:
There was a big concern that the election of 2008 is coming up. People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness.
While clearly disenchanted and concerned about the prioritization of political interests over judicial, Colonel Morris did not talk specifically about his concerns with regard to Mr. Haynes until the Gitmo death penalty cases were announced. As The Nation (by way of AlterNet) reported yesterday however, now that lives are on the line, the one-time chief prosecutor's words have been damning, to say the least:
When asked if he thought the men at Guantanamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes - the man who now oversees the tribunal process for the Defense Department. "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.
"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'"
While there is no question whatsoever that the conspirators who unleashed the attacks of September 11th should be brought to justice, it is equally clear that any system in which there is no opportunity for acquittal fails to provide a mechanism to achieve that aim. Instead of legitimate trials, we are instead left with a sham predicated on the belief that we should be grateful to have men and women in positions of power who can apparently determine guilt or innocence without the need for a messy, impartial judicial proceeding.
Those who back this mockery of not only fundamental human rights but the long-declared character of the United States as a nation that seeks both truth and justice to the best of its ability, appear wholly oblivious to the consequences of their actions. The stupefying - but inescapable - conclusion is that they expect the gratitude and admiration of the world upon completing this tragic farce. For anyone who did not let cowardice and authoritarianism betray the reputation and standing of America and its people in the wake of 9/11, it is left to wonder how we will ever recover from the results of such deeply-rooted delusion.
Below is Keith Olbermann's most recent special commentary on President Bush's renewed fear-mongering efforts to force through retroactive immunity for telecommunications companies that helped him break the law by spying on Americans without a warrant. Excellent, as usual:
As his presidency enters its final year, it appears that George W. Bush is searching for ways to keep himself relevant, and to shape his "legacy" into something at least remotely more positive for his Republican followers than the hash of disastrous war, corruption, profligacy and stupidity for which he will justly be recalled. Usually, presidents enjoy at least a small bump in the polls after they give a State of the Union address, but it is a measure of the country's disdain for his continued presence in the White House that Mr. Bush's numbers actually dropped after he spoke to Congress in the closing days of January. Perhaps then, it should be unsurprising that he has gone back to what once served him so well in shaping public opinion through fear mongering, propagandizing and a particularly amoral and arrogant brand of politics that will forever be associated with his regime: making what he believes will be construed as bold moves in the War on Terror®.
As with so many of the Bush Administration's initiatives, however, the decision to pursue the death penalty against six prisoners currently interned at Guantanamo Bay flies in the face of both logic and morality. To whit, on February 5th, Central Intelligence AgencyDirector Michael Haydenadmitted that the C.I.A. had tortured several of the prisoners held at the camp, including some of the men whom prosecutors are now seeking to execute. Two days later came revelations not only that there exists within that facility an area for "high value prisoners" called Camp 7 that is so secret it's location within the base cannot be revealed, but that there is strong evidence that prosecutors were suppressing evidence that could free at least one captive.
With all of these serious questions about the legitimacy of the system in which the prisoners are enmeshed, it is a bold move indeed to proceed with a capital case, especially when one considers that even the president would supposedly prefer to close Guantanamo Bay. Of course, Mr. Bush prides himself on resolute action in the face of contravening facts, and this decision is eminently reasonable if the expressed desire to shutter Gitmo is nothing more than lip service to widely-held standards of human rights to which he himself does not subscribe. As might be expected, this looks like another trademark Bush debacle in the making; from a New York Timesarticle on the decision to pursue the death penalty:
The military commission system has been troubled almost from the start, when it was set up in an order by President Bush in November 2001. It has been beset by legal challenges and practical difficulties, including a 2006 decision by the Supreme Court striking down the administration’s first system at Guantanamo. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, and that was through a plea bargain.
Eric M. Freedman, a Hofstra University law professor who has been a consultant to detainees’ lawyers, said a decision to seek the death penalty would magnify the attention on each of the many steps in a capital case. Intense scrutiny, he said, “would be drawn to the proceedings both legally and politically from around the world.” [...] Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases in the military commission system would bog down the untested system. He noted that many legal questions remain unanswered at Guantanamo, including how much of the trials will be conducted in closed, secret proceedings; how the military judges will handle evidence obtained by interrogators’ coercive tactics; and whether the judges will require experienced death-penalty lawyers to take part in such cases.
“Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba,” Major Fleener said. [...] In any event, vigorous trial battles and appeals would probably mean that no execution would be imminent. “It certainly seems impossible to get this done by the end of the Bush administration.”
Casting the proceedings into deeper doubt was an admission (link goes to audio file) by the professionally suspectAir ForceGeneral Thomas Hartmann on Tuesday's edition of NPR's Diane Rehm Show that the accused - after six years in captivity - had only been granted access to counsel 24 hours earlier. This in turn was further compounded by a report that the F.B.I. had sent in a "clean team" who attempted to re-gather the evidence obtained from the prisoners under torture using non-coercive methods, apparently in an effort to make that evidence admissible at trial. While such tactics are apparently not uncommon in criminal proceedings - although not in cases involving torture - these are clearly different circumstances. As former Navy Judge Advocate General (J.A.G.)John Hutson says:
"There's something in American jurisprudence called 'fruit of the poisonous tree': You can clean up the tree a little but it's hard to do," said John D. Hutson, a retired Navy rear admiral and former judge advocate general. "Once you torture someone, it is hard to un-torture them. The general public is going to be concerned about the validity of the testimony."
So, here's what we have: Six men have been held extra-legally in a super-secret location for the past 6 years. During that time, several of them were tortured, and they were denied access to counsel or the ability to challenge their imprisonment in either the American courts or using any system of jurisprudence recognized under international law. Their chance for a trial, when it finally arrives, is rushed forward in the last year of a lame duck presidency, and reeks of political motivation. The case will be made with some form of "cleansed" evidence that most reasonable people will suspect is tainted by the defendants' torture. To top it all off, the U.S. government, in recommending capital punishment, is pursuing a goal that is not only abhorred by the rest of the civilized world, but that will effectively make a martyr of anyone executed. As Anthony Romero, Executive Director of the American Civil Liberties Union (A.C.L.U.) correctly notes:
“Those accused of planning the September 11 attacks should be brought to justice, but a credible trial is impossible under a flawed military commissions system lacking in basic due process protections and allowing for the admission of coerced testimony, possibly obtained through practices condemned throughout the world as torture. Questions of fairness and due process are always at play in death penalty cases, and this will be doubly true in any capital case involving high value detainees who have been tortured and held for years without access to counsel. The American legal system will be as much on trial in these cases as the actual detainees.”
To be sure, this trainwreck was inevitable from the moment the Administration painted the United States into a human rights corner by constructing an offshore prison camp for the sole purpose of keeping the people held there in legal limbo. At this point, there are no good options, and we should be perfectly clear about what is going to happen: there is no outcome under which any of the six men tried will be released. None. It will not happen, because even if - by some extraordinary circumstance - they are not convicted, the United States cannot set them free. They will either be held pending further "investigation" and charges, denied release because no other country of which we approve will take them in, or die mysteriously either in custody or "escaping." This is the very definition of a show trial.
Then again, this tribunal is not really about justice; it is purely for the consumption of the hardcore G.O.P. base. Unfortunately, in the eyes of the world, it is the justice system of the United States that will be on trial as much - if not moreso - than the men alleged to have masterminded the 9/11 attacks. Even if, as many expect, the proceedings last beyond the end of the current president's tenure in office, his successor will be hard pressed to significantly change course. As with so many other things George W. Bush has touched, whoever next occupies the White House must deal with a tragic and tangled disaster that can only painfully be addressed. Sadly, like the outcome for the case against the six Guantanamo Bay prisoners, the world's judgment on America and the manner in which we practice the ideals we preach is very likely predetermined; it is a case that has already been lost.
For a view into one of the earliest cases of frontier injustice under Bush policies after September 11th, watch the video below. It's a trailer for the new movie Taxi to the Dark Side that details what happened to a taxi driver who fell into American hands and was murdered in captivity.
As Americans focus on the presidential election and growing economic problems at home, George Bush's wars in Iraq and Afghanistan seem to be slipping ever further from public attention as they are bumped off the front page by more immediate concerns. While the White House and its allies are eager to claim that the president's troop escalation 12 months ago is responsible for the falling number of U.S. casualties - and the concomitant reduction in scrutiny - the reality is that violence had already begun to diminish when the so-called "surge" was implemented, and it remains largely irrelevant to both the diminishing number of killed and wounded, and as importantly, to the rebuilding of Iraq as a nation. The escalation's stated end-goal of political reconciliation is no closer than it was last year - witness, for instance, the stalled Iraqi oil law negotiations - and there is dubious connection between the presence of more American forces and diminished mayhem.
While the deployment of additional U.S. troops has provided some level of increased security in the areas in which they serve - notably Baghdad - it must also be remarked that sectarian violence had raged in Iraq for the better part of the three years before additional forces arrived. Whole neighborhoods have now been "cleansed" of Sunnis, while others have been denuded of Shia, and the resulting segregation is a major contributor to the relative calm that Iraq has enjoyed for the past several months, at least with regard to American dead. (See chart above.)
The more effective - at least temporarily, anyway - tactic to be employed has been the purchase of good will. Payments are being made by U.S. forces directly to paramilitary groups and militia in return for their pledges not to attack, but this is cleary unsustainable in the long run. In any case, this brief respite from death and destruction is likely to be temporary. Not only is the United States military stretched so desperately thin that troops need to brought home as soon as possible, but similar lulls have occurred in the past, and January has already brought an uptick in violence.
Perhaps even more alarming however, is the fact that Afghanistan - America's forgotten war - appears to be slowly disintegrating. According to a report from the Afghanistan Study Group, more manpower is badly needed in that country, and it is in danger of becoming a failed state in the face of a resurgent Taliban. Given the current exhaustion of U.S. military resources, from where that manpower will come is anyone's guess.
As these pressures come to bear on the national conscience, it's to some degree possible to forgive Americans for growing weary of our adventurism in the Persian Gulf and Central Asia. It is unconscionable, however, that we, as a nation, are dealing with that fatigue not by ending the wars, but by ignoring them. While nearly 65% of the public is against the war in Iraq, "feeble" would be a charitable description of efforts in the capital to bring the troops home, as well as the pressure applied by constituencies to their representatives in Washington. Certainly, the election and the economy loom as immediate issues for most people, but it is a moral imperative that we remember the men and women we have sent overseas and into harm's way. Like the Iraqis, they're still dying.
Last month, talkshow host Montel Williams was on the egregious Fox & Friends morning show, ostensibly to pontificate into the echo chamber on the tragedy of the accidental overdose death of actor Heath Ledger. Mr. Williams - himself a navy veteran - instead chose to use this bully pulpit to point out that, while Mr. Ledger's death was tragic, it was no more so than those of the 28 U.S. troops killed in Iraq since the beginning of 2008, and that the names of these men and women who died in service had gone unreported. After being cut off to go to commercial by one of the Fox & Friends anchors, Mr. Williams did not return to the show, and four days later - after 17 years as a host - he lost his job.
When I left the Bush administration in 2003, it was clear to me that its strategy for defeating terrorism was leaving our nation more vulnerable and our people in a perilous place. Not only did its policies misappropriate resources, weaken the moral standing of America, and threaten long-standing legal and constitutional provisions, but the president also employed misleading and reckless rhetoric to perpetuate his agenda. [...] Let me be clear: Our ability to track and monitor terrorists overseas would not cease should the Protect America Act expire. If this were true, the president would not threaten to terminate any temporary extension with his veto pen. All surveillance currently occurring would continue even after legislative provisions lapsed because authorizations issued under the act are in effect up to a full year. [...] In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration's attempts to erode FISA's legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.
Meanwhile, Keith Olbermann has a special commentaryt on George W. Bush's fear-mongering efforts to grab yet more power for the presidency at the expense of the Constitution and civil liberties.
