What a mess: clearly this is going to unravel one way or another and in a big way.

Potemkin Justice indeed.

I don’t see how Obama’s clarity and logical approach has many choices at all. I keep hearing him from the future saying: ”the crimes we now know of are a matter of fact not opinion and our justice system must follow the course set by the rule of law.”

I heard Suskind last night on the CBC talking about his new book. He said many (most?) of the evidence files at Gitmo contain no more than scraps of pocket litter. All this time and that’s what we find. It’s beyond shocking. It’s always worse than we thought would be the worst case. I keep hearing myself saying: ”we knew that, we said that, but we were ridiculed.”

I see Maher Arar from time to time in the neighbourhood here; even his brother is still on the U.S. watch list. Arar says he cannot imagine ever travelling in the U.S. again. No bloody wonder. I am a U.S. citizen and I am afraid.

7 – Not only the items you mentioned, but the facts of the case are that we didn’t even ship Arar directly to Syria – we shipped to Jordan. There was truly no basis in law for shipping Arar, a Canadian citizen (who also was a refugee from Syria with Syrian citizenship) to Jordan. We then had Jordan get in the act with the handoff to Syrian torture, and the guts of the attainder and torture conspiracy is the Syrian torture (as well as the mistreatment here in the states before the handoff – including “disappearing” Arar) but the cleanly and clearly illegal behavior that is factually admitted all around, is that we shipped a Canadian citizen with no tie to Jordan (and no Jordanian warrants outstanding against him) to Jordan. Why?

Why do something so clearly illegal, except as a part of a torture conspiracy step to make sure you could deliver him into Syrian hands?

Larry Thompson, who signed off on the torture shipment paperwork, was just back from his participation (with Goldsmith) in the GITMO torture field trip when he signed off on the Arar handling. James Comey, when he replaced Thompson, fell all over himself filing a state secrets affidavit to protect Ashcroft and Thompson in this case. He has never attempted to correct the record with the court as to whether or not state secrets allegations were made to improperly deflect legal proceedings against torture co-conspirators vs. to defend national security.

CHS – I can help a little with your “riddle me this” and puzzlement. Any en masse move of GITMO detainees to the US is going to involve some that the US still has not been able to bleedback into other countries and obscurity. Your concern as someone who was not involved in authorizing or detaining or abusing those who were innocent, yet held in abuse for years, is to get them out of that abusive detention setting and restore freedom.

BUT, if you and your friends had been direcly involved in what happened with this men and children you’d have some fast answers to the riddles and puzzlement. Under the Geneva Conventions, any shipment of “protected persons” out of country is a severe breach and a war crime. Once the victims of those war crimes are on US soil, with a US court determining that they were never enemy combatants at all – well, that kind of ruling is a de facto ruling that they were protected persons. If they aren’t pows or illegal enemy combatants, there aren’t many other options.

So what do you do at that point? It’s really a question now, for that matter. The rulings on the Uighurs and even by Leon re: the Algerians has already brought some of this to a head. Why did Leon nudge gov so hard on not appealing? Why has gov fought so hard not to let the Uighurs be brought onto US soil to appear before the Judge in their case?

Bc you would then have victims of US war crimes on US soil with the architects of their crimes also on US soil. And a US court ruling that the detainees were not and never had been “combatants” opens up the door to – what do you do, now, about the war crimes? No matter how much evidence is destroyed now and no matter how many lies are told and no matter how much cover up you have on the torture front itself – the existence of these non-combatants at GITMO (and now on US soil) would speak for itself to make the prima facie case on the illegal shipment out of country, something that the Conventions themselves internally recognize as not just a breach, but a grave one.

So for all the kabuki about how dangerous it might be to have terrorists in the US, or how we “need” to be able to use tribunals and the yada yada in Goldmsith’s yammering, the heart of the issue is that we bring the victims of US war crimes onto US soil, with the perpetrators of those crimes also on US soil, and a US war crimes act that makes severe breaches of the Geneva Conventions a domestic crime.

I’m sure the torture victims act concerns are there as well, but they probably feel safer on that front. After all, el-Masri’s suit has been kicked out and there has been a long long time now for documents to get destroyed, stories to get straight, and, quite frankly, victims to be mentally corrupted with the assistance of psychologists and drugs and isolation. But while you might have an evidentiary mess on torture, you don’t on shipment.

Goldsmith, btw, was author of the draft memo that allowed for protected persons in Iraq to be shipped out of country for “enhanced interrogation” efforts. For all Yoo’s deficiecies – even his memos never claimed that all his machinations could be enacted and effected upon protected persons – only on “illegal enemy combatants” Goldsmith(and Philbin, Thompson and Comey) pushed hard for Haynes (who will feature prominently in any war crimes act trials) to be put on the 4th Circuit. He (along with Thompson) was a part of the torture field trip to GITMO.

He may have withdrawn the Bybee memo, but he never issued an opposing memo – he had knowledge that had to have included, at some point, knowledge that the CIA’s analyst who went to GITMO in 2002 to see why the intel wasn’t better discovered – and NOTIFIED THE WHITE HOUSE IN 2002 – that an absolute minimum of 1/3 of the detainees at GITMO not only where not active members of al-Qaeda, nor where they active members of the Taliban, nore did they have ties to either al-Qaeda or the Taliban -but they didn’t even have ANY mujahadeen ties at all.

So not only do you have the war crime of shipment of protected persons, despite any “good faith” claims you might try to cook up for the WH, there have been 6 years of “actual knowledge” of that war crime. And because of the release of names and identities, required by the court but even so withheld until released by a whistleblower, there can be some degree of tracking and identification of victims, even if they are not brought to the US. But if they aren’t brought to the US, physically, the crimes against them aren’t likely to ever make it to a US court.

If you go back and look at the kinds of statements Goldsmith has made, as well as questioning by Graham during the Alito hearings and statements after, and you look at the deliberate attempt in the MCA to make the CSRT determinations of “illegal enemy combatant” determinative and not subject to judicial review, it is very clear, over and over, that the concern about brining GITMO detainees to the US is largely a concern of CYA for war crimes against protected persons.

We do also have the huge and overwhelming issues of what to do about all the torture and depravity and in particular what to do with that torture as it involved not only “real” terrorists like KSM, but the torture and abuse of the children of such “real” terrorists as well. And those are some complex issues – and we are likely not going to be happy with the pro-torture decisions that end up being generated by courts here who will not allow such “real” terrorists to walk and who will not allow any consequences to be visited upon their torturers.

We have already had that, when Padilla was filtered selectively into the criminal court system, with the forum shopping ending up with FLA. Remember all those brave – ishatleast words supposedly by DOJ *leaders* like Comey and FBI officers that you could “never” try in a regular court Bush torture victims? Umm, not so much, eh?

What Comey and Goldmsith helped to oversee was a Criminal Justice system that has no problem whatsoever with taking torture victims and deep sixing their torture, ignoring the mental states effects of that torture and how it impacts the ability to participate in defense (with lawyers appointed by the torturing government) Padilla isn’t the only case – go look at what has been happening in courts from FLA to CA to IL to NY and how torture is creeping into the courts, or torture victims are offered up to the system wtihout any judicial concern or interest or restrictions resulting from that torture.

We have to do something about GITMO, but it won’t be pretty, what we end up doing with torture once the cases hit these shores. OTOH, it has already been very ugly. The same Bush DOJ that all, thousands and thousands, sat silent during the Gonzales hearings and Abu Ghraib revelations, as DOJ solicitied and sponsored torture was exposed – that DOJ also has a legacy now of dragging torture into the courts.

What that does to this country is irrevocable, not matter what Obama tries to offer up as salve and solace.

Can you be disbarred for sheer stupidity

Hugh, the list of disbarred lawyers would be as long as ET’s version of your list!*g*

Closing Guantanamo will do the new president little credit if he is seen as having rebuilt it somewhere else.

I agree but in fact their article is essentially about doing exactly that either by keeping many facets of Guantanamo here or offshoring future detainees to places like Afghanistan.

I also like the line:

It is critical both to identify publicly the group of detainees against whom prosecutors intend to bring charges and to bring those charges expeditiously.

Where have these asshats been anytime the last 7 years?

And some of their points are just weird:

A further complication in assessing these options is that the more demanding the trial system chosen (for example, civilian trials instead of military commissions), the harder it will be to convict

Excuse me!? A fair trial is a “complication”. And shades of Hartmann, all they seem interested in are convictions, not rule of law, not judicial process. Not surprisingly they see the prospect of acquittals and short sentences as another problem. It never occurs to them that if the government has a piss poor case maybe that’s the government’s fault and the government’s burden. No, it all about how to get around such inconveniences.

It is really shocking that these guys are lawyers because they don’t seem to have even the vaguest idea of what the law is about. Can you be disbarred for sheer stupidity?

Now Obama inherits the mess….no good options out there.