Have A Wonderful 2010!

Have a wonderful and joyous New Year!  Sensen No Sen will resume regular posting in 2010.

Happy Holidays and Good-Bye to the Bush Decade

I, for one, will be very glad to have the first ten years of the 21st century in my rear view mirror.  The excellent Juan Cole seems to share that opinion, and counts down his top 10 worst things about the Bush Decade here.

Let's hope that 2010 kicks off a new era, and that the next decade is a whole lot better.  Have a happy holiday and a wonderful new year!

The Senate Prepares to Keep America from Joining the Rest of the Civilized World

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A report today in the Washington Post indicates that, with the announced support of Nebraska Senator Ben Nelson, there are now enough votes to pass the Senate's version of a health care reform bill. If the bill is passed, the next step will be reconciliation with legislation that came out of the House in November, which promises to be interesting, to say the least.

HR 3962, the House's Affordable Health Care for America Act, is summarized as follows:

... It seeks to expand health care coverage to the approximately 40 million Americans who are currently uninsured by lowering the cost of health care and making the system more efficient. To that end, it includes a new government-run insurance plan (a.k.a. a public option) to compete with the private companies, a requirement that all Americans have health insurance, a ban on denying coverage because of a pre-existing condition and, to pay for it all, a surtax on individuals with incomes above $500,000.

The Senate version, however, is a different beast entirely.  Not only does it lack a public option, but it places even greater coverage restrictions on abortion procedures - which, despite whatever one's personal feelings might be, are perfectly legal - and mandates the purchase of coverage from private insurers.  Former Vermont governor, presidential candidate and Chairman of the Democratic National Committee Howard Dean eviscerated the bill in column last Thursday:

If I were a senator, I would not vote for the current health-care bill. Any measure that expands private insurers' monopoly over health care and transfers millions of taxpayer dollars to private corporations is not real health-care reform. Real reform would insert competition into insurance markets, force insurers to cut unnecessary administrative expenses and spend health-care dollars caring for people. Real reform would significantly lower costs, improve the delivery of health care and give all Americans a meaningful choice of coverage. The current Senate bill accomplishes none of these.

Real health-care reform is supposed to eliminate discrimination based on preexisting conditions. But the legislation allows insurance companies to charge older Americans up to three times as much as younger Americans, pricing them out of coverage. The bill was supposed to give Americans choices about what kind of system they wanted to enroll in. Instead, it fines Americans if they do not sign up with an insurance company, which may take up to 30 percent of your premium dollars and spend it on CEO salaries - in the range of $20 million a year - and on return on equity for the company's shareholders. Few Americans will see any benefit until 2014, by which time premiums are likely to have doubled. In short, the winners in this bill are insurance companies; the American taxpayer is about to be fleeced with a bailout in a situation that dwarfs even what happened at AIG.

From the very beginning of this debate, progressives have argued that a public option or a Medicare buy-in would restore competition and hold the private health insurance industry accountable. Progressives understood that a public plan would give Americans real choices about what kind of system they wanted to be in and how they wanted to spend their money. Yet Washington has decided, once again, that the American people cannot be trusted to choose for themselves. Your money goes to insurers, whether or not you want it to.
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I reluctantly conclude that, as it stands, this bill would do more harm than good to the future of America.

I agree with Dr. Dean; the Senate bill is a giveaway to the insurance industry that does little to fundamentally alter the health insurance landscape.  And let's be entirely clear about whose fault this is: blame for this debacle should be placed not only on Senate Majority Leader Harry Reid, but President Obama, as well.

It was Senator Reid's decision to use rules for advancing this bill that require 60 votes to end debate, as opposed to a simple 51-vote majority, which he could have done, and which would have made people like Ben Nelson and Joe Lieberman - who have gutted this legislation - irrelevant.  The president, meanwhile, has failed to lead in this entire process, declaring in September that he would like to see a public option included, but then backing away from this stance mere weeks later, leaving Mr. Reid and the American people out on a limb while taking care to distance himself from any political fallout.

To be sure, real reform is not dead, but it will take unwavering leadership from the House of Representatives, and a full-court press on the White House to make it happen.  This isn't about passing a bill before Christmas so Mr. Obama can cross an item off of his to-do list; it's about helping real people, making our country stronger, and standing with the rest of the civilized world.  (See map above.)

The Troubling Math of the Gitmo "Suicides"

Back in September, Judge Colleen Kollar-Kotelly ordered the release of a Kuwaiti man named Fouad al Rabiah from the Guantanamo Bay prison camp, where he had been held since 2002. The judge found that the evidence against Mr. al Rabiah was insufficient to justify his internment, and last Thursday, he was flown home from Cuba on a Kuwaiti royal jet.  The next day, the Pentagon dropped all charges against him, although it maintains the option to refile the case - which alleged that Mr. al Rabiah ran a supply depot for al Qaeda at Tora Bora during the U.S. invasion of Afghanistan in 2001 - at a later date.

The specifics of the al Rabiah case feature the now-all-too-familiar elements of torture by the American military, but while that is no longer as shocking as it should be, what is striking is the general trend for the prison population at Guantanamo Bay.  Since the beginning of George W. Bush’s “War on Terror,” approximately 775 prisoners have been interned at the American prison camp at one time or another, with a peak population of 536 men in June 2002.  As of November 2009, however, that number had dropped to 215, meaning that almost seventy-five percent of the individuals once locked up at Gitmo have been released.  Even more tellingly, since the Supreme Court ruled that detainees can challenge their imprisonment in court, only seven detentions have been approved, while 30 prisoners – more than four times that number - have been freed.

In my last post, A Difficult Case for Suicide, I wrote about a 2006 incident in which three Guantanamo prisoners had been found hanged in their cells, their hands and feet bound, and rags stuffed in their mouths.  Even if one ignores the highly questionable claim by the U.S. military that the trio committed an elaborate, coordinated suicide while under near-constant observation, or alternatively, even if one is comfortable with the idea that a frontier-style lynching by American guards was the right thing to do, their is some deeply troubling math to consider. 

If nearly three quarters of all of the prisoners interned at Guantanamo Bay have been released for lack of evidence or because they have been determined to be not guilty - and they have - odds are that at least two of the "suicides" would have been freed by now.  Instead, they ended up dead in an American prison in Cuba, thousands of miles from their homes and their families, the victims of a toxic mixture of fear, ignorance, thoughtless expedience, and American exceptionalism.

A Difficult Case for Suicide

In June 2006, three inmates at the Guantanamo Bay prison camp - Yassar Talal al Zahrani, Mani Shaman Turki al Habardi al Tabi, and Ali Abdullah Ahmed  -  were discovered in their cells, dead.  Each had either hanged themselves or been hanged.  Camp commander Admiral Harry Harris made it clear that he believed it was the former, saying at the time:

They are smart, they are creative, they are committed. They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.

Without conducting an autopsy, the military issued a ruling of suicide for all three men, but took more than two years to do so.  Enough questions surrounded the incident, however, that Seton Hall University's Center for Policy & Research (CPR) conducted a lengthy investigation of its own. The CPR report was issued a few days ago, and its contents are profoundly disturbing:

Questions immediately arose about how three detainees, under constant supervision, were able to conspire effectively to commit coordinated suicides. The military soon announced that it was conducting an investigation, but the results were not published until more than two years later. In August 2008 a heavily redacted report of the investigation concluded that the detainees had hanged themselves in their cells and that one detainee, while walking the corridors that night, had announced, “tonight’s the night.”

The investigation, however, leaves many unanswered questions. Three years later it is still unclear how such coordinated conduct could have occurred, much less how heavily-supervised detainees could have been dead for more than two hours before they were discovered.  Both the time and exact manner of the deaths remain uncertain, and the presence of rags stuffed in the detainees‘ throats is unexplained. Negligence of the guards seems to have been ruled out by the absence of any disciplinary action by any military personnel. Although some of the guards were formally warned that their original statements were suspected to be false or that they were suspected of failing to follow direct orders, no guard was ultimately charged with either making a false statement or being derelict in his duty.

The following report examines the investigation, not to determine what happened that night, but rather to assess why an investigation into three deaths could have failed to address significant issues. Further, the report raises serious questions that must be addressed to dispose of rumors that have circulated - rumors that the cause of the deaths was more sinister than “asymmetrical warfare.”

This report reveals the following facts:

• The original military press releases did not report that the detainees had been dead for more than two hours when they were discovered, nor that rigor mortis had set in by the time of discovery.
• There is no explanation of how three bodies could have hung in cells for at least two hours while the cells were under constant supervision, both by video camera and by guards continually walking the corridors guarding only 28 detainees.
• There is no explanation of how each of the detainees, much less all three, could have done the following: braided a noose by tearing up his sheets and/or clothing, made a mannequin of himself so it would appear to the guards he was asleep in his cell, hung sheets to block vision into the cell—a violation of Standard Operating Procedures, tied his feet together, tied his hands together, hung the noose from the metal mesh of the cell wall and/or ceiling, climbed up on to the sink, put the noose around his neck and released his weight to result in death by strangulation, hanged until dead and hung for at least two hours completely unnoticed by guards.
• There is no indication that the medics observed anything unusual on the cell block at the time that the detainees were hanging dead in their cells.
• The initial military press releases did not report that, when the detainees‘ bodies arrived at the clinic, it was determined that each had a rag obstructing his throat.
• There is no explanation of how the supposed acts of “asymmetrical warfare” could have been coordinated by the three detainees, who had been on the same cell block fewer than 72 hours with occupied and unoccupied cells between them and under constant supervision.
• There is no explanation of why the Alpha Block guards were advised that they were suspected of making false statements or failing to obey direct orders.
• There is no explanation of why the guards were ordered not to provide sworn statements about what happened that night.
• There is no explanation of why the government seemed to be unable to determine which guards were on duty that night in Alpha Block.
• There is no explanation of why the guards who brought the bodies to the medics did not tell the medics what had happened to cause the deaths and why the medics never asked how the deaths had occurred.
• There is no explanation of why no one was disciplined for acts or failures to act that night.
• There is no explanation of why the guards on duty in the cell block were not systematically interviewed about the events of the night; why the medics who visited the cell block before the hangings were not interviewed; or why the tower guards, who had the responsibility and ability to observe all activity in the camp, were not interviewed.

As these many unanswered questions suggest, the investigations were themselves contrary, not only to best practices for investigations of serious matters, but also failed to conform to minimum standards in several ways. These include:

• Failure to review relevant information, most of which was easily available including audio and video recordings which are systematically maintained; “Pass-On” books prepared by each shift to describe occurrences on the block for the next shift; the Detainee Information Management System, which contains records of all activity for that night as the events occur; and Serious Incident Reports, which are the reports used when there are suicide attempts. 
• Failure to investigate an alleged conspiracy among detainees to commit suicide, despite the Naval Criminal Investigative Service’s statement that on the night in question another detainee - who did not later commit suicide - walked through the cell block telling people, “tonight’s the night.”  There is no indication of how this could have happened given camp security rules or, if it had taken place, why security was not tighter than usual as a result. 
• Failure to investigate all available material witnesses who would have had an opportunity to observe what happened that night.

There is little to add here, and the report’s findings, depressingly, speak for themselves.  The deaths of Zahrani, Abi and Ahmed reek of the “accidents” that used to befall IRA members and sympathizers in British jails during the worst days of The Troubles, and blacks in the custody of Apartheid-era South African security forces.

Either truly monolithic incompetence (and potentially, corruption) allowed these three men to take their own lives in a coordinated fashion under heavy guard, or they were murdered.  Given the rags stuffed in their mouths and the extreme difficulty involved in hanging one’s self with bound hands and feet, the case for group suicide appears to be a thin one.

Version 2.0 - Updated

Returning readers will notice that I have been messing around with a new template for Sensen No Sen. I apologize for what are some pretty significant changes to the way this blog looks, but the modifications you see before you are driven not so much by a desire for an update, but by technical issues with Blogger that have forced my hand.

In any case, things are likely to be a bit unsettled for the next several days to a week, but I hope to have a final Sensen No Sen v2.0 shortly. Thank you, in advance, for your patience.

UPDATED December 6, 2009 at 3:39pm CST: Well, I'm finally done! After experimenting with a number of cool templates I found on the web, I became discouraged with their lack of flexibility, and have instead returned to a basic Blogger template that I have modified heavily. Overall, I am pretty pleased with how it turned out, and hope you like it!

FOX News Channel's Legal Analyst: Military Tribunals for Guantanamo Bay Prisoners Are Unconstitutional

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Over the Thanksgiving holiday weekend, a very interesting editorial appeared in the Los Angeles Times, authored by former New Jersey Superior Court Judge Andrew Napolitano, who currently works for FOX News Channel as a legal affairs analyst. In it, Judge Napolitano laid out a very clear and concise explanation of why the collective tearing of hair, clutching of pearls and gnashing of teeth coming from the American right wing at the news that alleged 9/11 mastermind Khalid Sheik Mohammed will be tried in civilian court is entirely off-base. It is a relatively short article that carefully stacks each point on top of the one preceding it, and I recommend checking it out in its original form to get the full effect, but the highlights are below.

When President George W. Bush spoke to Congress shortly after 9/11, he did not ask for a declaration of war. Instead, Republican leaders offered and Congress enacted an Authorization for the Use of Military Force... Thus was born the "war" on terror.
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Virtually all of those seized who survived interrogation have been held at Guantanamo Bay. Bush initially ordered that no law or treaty applied to these detainees and that no judge could hear their cases, and thus he could detain whoever he decided was too risky to release and whoever he was satisfied had participated in terrorist attacks against the U.S. He made these extra-constitutional claims based, he said, on the inherent powers of the commander in chief in wartime. But in the Supreme Court, he lost all five substantive challenges to his authority brought by detainees. As a result, some detainees had to be freed, and he and Congress eventually settled for trying some before military tribunals under the Uniform Code of Military Justice and subsequent legislation.

The casual use of the word "war" has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war - and thus trigger the panoply of the government's military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.
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All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

That the target of the Cole attackers was military property manned by the Navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks,all were tried in federal courts. The "American Taliban," John Walker Lindh, and the notorious would-be shoe bomber, Richard Reid, were tried in federal courts. Even the "Ft. Dix Six," five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.

The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government's appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the 6th Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.

Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process - be that person a citizen or an immigrant, someone born here, legally here, illegally here or whose suspect behavior did not even occur here.

That's a pretty clear and unambiguous argument. So can we stop the shrieking and the pants-soiling and start acting like the nation we're supposed to be?