Mark, Jonathan, Welcome to the Lake.

Mary, Thank you for Hosting this Book Salon.

Glad to be here. Mark may not be able to make it.

I have no idea how Jonathan and Mark are able to juggle so many things, but since we are lucky enough to have them, I hope we can make a lot of use of the time they have to give us.

Jonathan or Mark – Towards the end of the book you discuss the “Guantanamo beyond Cuba.” We’ve seen that the Obama administration’s interpretation of closing Guantanamo has evolved to mean shifting the situs of the Executive detention powers asserted by President Bush to new locations. How do you foresee the rebranding of Guantanamo, using Bagram and Thomson, Illinois as the new locations for warrantless Executive detention, impacting the Guantamo lawyers going forward?

I think it is important that Guantanamo not simply be closed but ended. Guantanamo is more than just a prison; it’s a template for a larger system of detentions outside the law and established constitutional principles of due process. So far, the Obama administration has indicated that it is going to keep two features of Guantanamo: military commissions, a second-class trial system; and indefinite detention without trial. This is is inconsistent with Obama’s promise to restore the rule of law, and would simply move the problems of Guantanamo onshore.

Welcome Jon, Thanks to Mary for hosting.

Thanks for pulling the book together–it provides a really fascinating, inspiring, and troubling montage of this nightmare together.

Some of the first cases, such as the Al-Marri and Hamdi habeas involved attempts to assert Guantánamo-like powers within the United States, with greater success than you might want to believe.

Greetings Jonathan and Mark, thank you for the great work and your time here today. Could you elaborate a little on this point; I think most people are really unaware of how true this is and it is pretty chilling.

During that detention, some interrogators may have pretended to be lawyers for the detainees; other interrogators may have affirmatively tried to dissuade the detainees from meeting with lawyers by telling them that the lawyers would be homosexuals and Jewish. Detainees fear that the attorneys who claim to want to act on their behalf, are spies for the US or even for other governments which had been allowed to send interrogators to GITMO.

I am a pastor, not a lawyer (civilian or military), but how is this not grounds for dismissal of charges, even under the MCA?

For that matter, regardless of the effect on the cases against these detainees, are there any legal repercussions for those who carried out these misrepresentations?

Are there any cases currently working their way through the appeals process that you think may be particularly important to watch with respect to their impact on the Executive detention and military commissions for non-battlefield detainee issues?

Jonathan,

The confinement procedures in supermax prisons have been described by a number of people as torture very similar to the extreme isolation procedures that were used at Guantanamo and other facilities where WOT detainees have been kept. Is there any chance that this move to the facility at Thomson will provide the opportunity to litigate the torture aspect of extreme isolation in supermax prisons in the process of a trial for a former Guantanamo prisoner who was subjected to extreme isolation?

Also, what do you make of the attempts in other countries to hold the US accountable?

In response to Peterr’s comment, one of the main problems is that there has not been any real accountability for the abuses perpetrated at Guantanamo and elsewhere. After September 11, officials at the highest levels of the U.S. government made a deliberate decision to circumvent the Geneva Conventions and prohibitions against torture and other mistreatment. In order to re-establish human rights protections, an investigation needs to be conducted and those responsible need to be held accountable.

Jonathan – Has this experience, and learning of the experiences of other defense counsel trying to represent our military’s non-citizen prisoners, changed your outlook on the effectiveness, or worth, of the 1949 Geneva Conventions relative to detentions in a time of armed conflict?

Do you have any recommendations for making those Conventions more meaningful, by the implementation of some means of (international) enforcement against even aggressive, heavily-armed and internationally-dominant nations?

Jon

I’m curious, too, about how this book came together. Was there a sense among the lawyers that you all needed to voice this? Did NYU want to capture all of this? I imagine it’ll make an important text book in universities–was that part of the plan?

That is a pretty interesting question. My gut reaction is no, they will have at least a theoretical firewall between the two detention jurisdictions so that it really doesn’t provide any additional avenues.

When General Hartman was removed from the military commissions, that was one episode where outrageous conduct was held accountable (though being allowed to take early retirement is *not* the level of accountability I would have chosen).

Is there even a process for going after those who misrepresented themselves as lawyers?

[I think you hit the wrong "reply" button. Choose the button *underneath* the comment to which you want to reply.]

The book came together out of Mark and my shared sense that many important stories about Guantanamo and the injustices perpetrated there might be lost forever. Lawyers have played a unique role at Guantanamo–they have not simply represented those who are unrepresented but they have also in effect born witness to many of the human rights violations. Lawyers are the only individuals (other than government actors) who have met with detainees while those detainees were at Guantanamo. Our goal was to capture these stories to give a fuller picture of what is happening at Guantanamo and to preserve these stories for history.

A big part of the Executive branch argument has been that there were no rules at GITMO. I had a cyber-discussion once with a nice woman I know from my passion – the horseworld. She told me that I just didn’t understand – “we” (the US) were trying really hard to give the “terrorist” at GITMO lawyers, but they just “didn’t want them” She “knew” this from watching “the news.”

Pacer and sites like ALCU’s and EFF’s and FDL’s that will host links to opinions is a godsend when you are dealing with someone like that – bur with whom you have a friendly relationship. When you can send them a link to an opinion issued by a court, they are very often swayed believe it or not. They don’t read the opinion, but just getting it has an impact – it becomes much less a “well, you just listen to those liberal sites like NPR and Fox gives real news” exchange.

I’m guessing at some point there was some interrogators who really thought that there might be the kind of information they might be able to get that would justify their tactics. I’m guessing there might be others who left that decision to their superiors and did what they were directed to do. I worry that there might be some who – looking at the full picture of what had been and was being done – wanted to make sure it all stayed as buried as possible.

Jonathan: Are you aware of any habeas or next friend filings in the United States on behalf of KSM’s children and wife?

[Background for those who may read this and not be familiar with any issues regarding KSM's children and wife - They were reportedly captured by joint Pakistani and US forces in the raid on a Karachi safehouse that resulted in the capture of Ramzi bin al-shibh. Another former blacksite detainee now at GITMO, Majid Khan, has given an affidavit asserting that KSM’s children were being held and abused at the same Pakistani facility that the US was using for his detention. There was a British report that claimed the US was taking KSM’s children to America (and included the reference that they were being accompanied by a psychologist, however, we now know that one of the requirements of the torture memos for abusive interrogation was the presence of a psychologist). Ron Suskind claimed that the children (although he spoke of a boy and girl rather than two boys) were in US custody and threats against them were used in the KSM interrogation. The IG report that eventually has been released in redacted form may support Suskind’s account. ]

My experiences have shown the continued importance of the Geneva Conventions and also how many people within the military itself value and are committed to them. At the same time, however, my experiences have also shown that the Geneva Conventions remain vulnerable and that an administration can do a lot of damage by seeking to circumvent them. That’s one reasons what it’s important that there is a judicial role to act as a check on the executive.

The book came together out of Mark and my shared sense that many important stories about Guantanamo and the injustices perpetrated there might be lost forever. Lawyers have played a unique role at Guantanamo–they have not simply represented those who are unrepresented but they have also in effect born witness to many of the human rights violations. Lawyers are the only individuals (other than government actors) who have met with detainees while those detainees were at Guantanamo. Our goal was to capture these stories to give a fuller picture of what is happening at Guantanamo and to preserve these stories for history.

I’m a lawyer but not a trial lawyer.

Do any of the Fourth, Fifth, or Sixth Amendment protections apply to MC “trials”?

Do the Federal Rules of Evidence apply?

Mary at number 8, there are a number of important cases working their way through the system. One important issue–and one that has not been resolved even after eight years–is who can be detained militarily and without criminal trial. All the Supreme Court has said so far is that a soldier who fought for the Taliban government in Afghanistan against U.S. or allied forces can be detained. This is consistent with basic law of war principles. But the past and current administration have asserted far broader powers, including the power to detain indefinitely without charge an individual who never fought on a battlefield or even committed a belligerent act, based on the notion of a “global war on terror.” THis issue is raised in a number of Guantanamo detainee habeas corpus cases, one of which is now before the Court of Appeals.

Jonathan,

How credible do you find the conclusion of suicide for three simultaneous suicides at Guantanamo, especially when all three appear to have had rags stuffed down their throats?

Jonathan, can you describe any contact you’ve had, regarding particularly the conditions of detention at Guantanamo, with the powerful Armed Services Committees of the House and Senate? Have you tried to make contact and inform them/encourage them to investigate, have they been receptive, have they reached out to you/the ACLU for testimony or background information, etc.

Or have those committees, under both Republican and Democratic Chairmen, as it seems to me, instead actively blocked oversight of what’s been going on in our military prisons abroad?

Are there any Members of Congress who deserve special mention for their advocacy on behalf of basic human rights for America’s (demonized) foreign prisoners?

Jim @ 9, This is an important point. Prolonged isolation is one of the worst–and least understood–abuses perpetrated at Guantanamo. It is also a larger problem in the U.S. prison system as a whole (Guantanamo does not come out of nowhere, as a terrific piece in the book by death penalty lawyer Denny LeBoeuf points out). This problem has improved at Guantanamo, at least for some detainees. It would be terrible if conditions for those prisoners got worse if they were moved to the United States.

Jonathan would have more of the details, but basically the answer is no. The evolution of the concept of “commissions” (as opposed to courts martial even) springs from their use by “necessity” in settings where standard judicial proceedings can not be held.

Because the proceedings in GITMO are NOT cases where, of “necessity” such as battlefield conditions or the breakdown of the civilian court system during rebellion, there must be proceedings that take place extrajudicially and without even the normal constraints of the Uniform Code of Military Justice, the whole effort by Congress to graft a set of “rules” (but “lesser rules”) of evidence and process to try to regularize the Commissions into something apart from a civilian criminal trial and apart from a court martial proceeding – but something they can claim to the world is not “lawless” is, IMO, a lot like calling a visit to South America a hike up the Appalachian trail.

The rules for the Military Commissions were amended as part of the recently passed Defense Authorization Act which just passed a little over a month ago. Bottom line is they have pretty much their own set of complete rules that incorporate bits and pieces of the protection you ask about, but nowhere near in a recognizable form.

Here is a link to a set of the former rules that will give you an idea

http://legalethicsforum.typepad.com/blog/files/part_ii_rmcs_final.pdf

Hey Art, You put your finger on a hot issue. In its 2008 Boumediene v. Bush decision, the Supreme Court ruled that the Constitution’s habeas corpus guarantee applied to detainees at Guantanamo. It made clear that other constitutional guarantees–like the Fifth or Sixth amendments–could apply there as well, but did not reach the issue. This question will be addressed in future military commission cases. Certainly, those guarantees should apply.

Thank you. I know there’s no way to get too deeply into this issue in comments, but I’ve been watching a few of the decisions where the courts are having to struggle with this Executive and Congressional ill-defined concept of giving “material support.” I think I’ve seen at least three different decisions where judges have been trying to fill the gaps on what this does or doesn’t, can or can’t, should or shouldn’t, mean. Some have been well thought out, but it seems pragmatically to be a huge mess and one that Congress bears as much responsibility for as Bush/Obama and the DOJ.

It is both interesting and often pretty depressing to watch it all unfold.

Well said, Mary.

All the Supreme Court has said so far is that a soldier who fought for the Taliban government in Afghanistan against U.S. or allied forces can be detained.

How is that even legal? Not that I’m a fan of the Taliban, but as Glenn Greenwald has pointed out, we claim the right to imprison people who take up arms against our invasion of their country. What gives us such a right, legally speaking? Is it solely because Congress has authorized military intervention?

Thanks for your work, and for your time today. People like you make me think twice about telling lawyer jokes. :D

Agreed. One of the things we often discuss here – well at Emptywheel anyway – is how there is jurisdiction for MC tribunals when the courts are open and operating normally under a Milligan analysis. Do you have any thoughts on this area?

For us non-lawyers, what important reports or studies should we be watching for in the near future, concerning the status of Guantanamo?

Don’t know if you represent him or if he’s in your book, but what’s the status of Mohammed al-Qahtani in light of what Susan Crawford said?

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

Are there others she has described like this?

Hi Peter, I think secrecy is one of the biggest problems at Guantanamo. Much of what happened at Guantanamo was never supposed to become public. The Freedom of Information Act litigation by the ACLU and other groups has had a tremendous impact here, forcing the government to disclose documents detailing abuse (which shows precisely why the government had wanted to keep things secret). The habeas corpus litigation has also been important in this regard. Yet, to this day, many people (including in the media) continue to deny or minimize the abuses that occurred at Guantanamo as well as other off-shore prisons like CIA “black sites” and Bagram in Afghanistan.

There are some complicated issues, particularly now, around detaining people in Afghanistan without trial because of the nature of the conflict there and the lack of clear legal authority. But the most dangerous–and radical–assertion of executive detention power (and one the Obama administration has not abandoned) has been the claim the president can order the military seize people anywhere in the world and imprison them indefinitely as part of the “global war on terror.”

Mohammed al-Qahtani is still detained at Guantanamo. Like many others, he remains in a state of legal limbo. His case was one of the best documented examples of the use of torture at Guantanamo.

On the accountability front, my personal opinion is that many people truly still believe the Rumsfeldian descriptions (never really challenged much by the main stream media)that everyone at GITMO is terrorist who would chew through hydraulic lines with their teeth, etc.

I don’t think the public discourse will ever change without something pretty hard and inescapable that proves the torture architects knew, very early on, that they were knowingly including innocent people in their interrogation, isolation and detention experiments. It’s probably naive, but I think that the August 2002 memo referenced in several sources (such as Jane Mayer’s The Dark Side) and seemingly referenced in one of the recent habeas cases, is very important to changing the public discourse on accountability.

To know that people like Bellinger, Rice, Gonzales, Addington and Flanigan were advised back in August of 2002 as to specific persons at GITMO who were innocent of any terrorist affiliation and as to the reasons to believe that a large segment of the GITMO was also innocent, and yet they continued to hold these people and use them for what was basically human experimentation – is pretty chilling.

I’m hoping some day soon that memo will surface in some way – or that, at a minimum, the author (who I believe isn’t that difficult to discern) is questioned by Congress in testimony made public.

We have now seen more than two dozen cases where courts have determined that the detainees were not “enemy combatants” It seems that many of them would also be protected persons under the Geneva Conventions. The GCs describe the transfer of protected persons out of country as a severe breach of the conventions – a war crime. Is this a part of the reason that the US was so committed to making sure that every detainee had a CSRT finding that they were “enemy combatants” and why the battle on habeas is being fought so hard?

You mean like Addington’s admission?

Hi Bev, one thing to look out for (in addition to any studies) is whether the current administration will seek additional legislation to further institutionalize the Guantanamo-style system of indefinite detention in the United States. This would be a big mistake and, so far, the administration has not done so

Why do you think no one has been held accountable for the murders and torture at Gitmo?

And yet those ramifications of the myriad of non-EC decisions are never reported by the media in their reports that some detainee here and there is going to be shipped off somewhere. It is fairly heinous.

Hi Mary, I’ve always thought the main goal behind the CSRTs was to help ratify previous executive branch decisions that the prisoners at Guantanamo should be detained and to foreclose any judicial inquiry. The CSRTs were created just days after the Supreme Court’s first Guantanamo detainee decision, Rasul v. Bush in June 2004, which ruled that the detainees must receive habeas hearings in district court. The government feared any judicial interference with its operations (which, among other things, would have helped uncover the abuses of detainees and the lack of evidence to detain them). So it defended the CSRTs and fought tooth and nail against habeas corpus hearings. The government also wanted to perpetuate the myth that the Guantanamo detainees were all “the worst of the worst.”

Because the first crack could open the floodgate; the US government and Congress will fight like hell to make sure that day never comes. Those are a lot of cards stacked against the accountability you seek.

Hi there, I think there are several reasons, including the degree to which torture had been endorsed at the highest levels of the U.S. government and a lack of political will on the part of the current administration to go after those who were really responsible. One of things we’ve learned from the last eight years, is the myriad of ways torture can infect and corrupt a legal system.

This is more in the way of a comment than a question, but for those who are wondering the kinds of information you get from the book, I found it to contribute context across a huge range of issues. I remember reading, for example, after Greg Craig was fired/resigned, a comment elicited from Tom Wilner (one of the “Guantanamo Lawyers”) expressing a lot of disappointment. The book gave me not only a lot of context on the kinds of cases Wilner was handling and how willing he had been, even as a “big firm” laywer to tackle them – but also, sadly, context about how he and some other lawyers had really rallied behind Obama as being a possible change agent. That context makes you really understand the disappointment expressed in that fairly recent comment more clearly.

IMO Obama has protected bushco and all the war criminals which makes him a criminal as well.

Do you assume, as I do, that he (and Zubaydah) will be among those they try to keep in indefinite detention?

Hi Mary, this is a really important point. It is true, as you point out, that many people at Guantanamo were held–for years–just to obtain information and also to cover up mistakes that had been made. I agree it is important to make people understand that torture not only does not work but also was committed against innocent people.

That’s what always strikes me as well.

I can pretty much guarantee you if we opinions coming out that indicated there was secret evidence that Jon Burge and his crew disappeared people and told them they had to confess before they could leave the hole where they were being held – that “no one leaves here innocent” it would get a bit more press than what we’ve seen.

I think the “important” points are the ones you make about torture not working and basically being so immoral as to erode the underpinnings of any civilized society.

BUT –
I think the public discourse point – the one that might drive the conversation differently than it has been driven so far (although a lot has changed over the years, even with the “worst of the worst” continuing as the media theme) – is that not only did they have innocent people, they knew they had them and knew it for years and just left them there.

It is certainly possible, although I’m not sure that prior torture alone explains it. The government simply may not have reliable or credible evidence. What’s striking about Abu Zubaydah is not just the brutality of his treatment (much of which is laid out in the August 2002 OLC memo) but that he was not the high-level al Qaeda operative the government said he was. But these kinds of cover-ups are precisely what happens when you go down the road of torture as the U.S. did after 9/11

One of the things I liked about the book was its accessibility.

I confess I haven’t finished the whole thing. But it’s the kind of book you can pick up and read snippets. While this won’t interest anyone here, that’s why I imagined it would make an interesting book to teach from. But it also makes it really accessible.

Does your book include any discussions with (or essays by) lawyers who resigned rather than cooperate with what they saw to be unjust legal practices, or left in frustration over being stonewalled?

I agree, and the government has known this from early on.

There’s a troubling description in the book of how the Defense Department simply ordered “do-overs” in several of the (handful of) CSRTs that found the detainee was not an “enemy combatant” because it made it appear that some of the detainees were innocent.

Let’s just say I read this
http://www.harpers.org/archive/2006/09/sb-six-questions-emile-nakhleh-1158706094
before I read The Dark Side.

The corollary to that is that they also continued to torture, apparently for purposes of intentionally eliciting false testimony to cover their asses like with abu Zubayduh. Marcy timelined it out somewhere, but it is crystal clear that is exactly what occurred; no way that was the only case of that (as you allude to above). I tyhink the general public might be far more outraged if they were aware significant torture was employed not for the purpose of discovering the freaking stupid “ticking time bomb” but in order to force false statements to cover up crimes.

One thing that was mentioned during the Abu Ghraib scandal–but hasn’t been enough since–is that the US was trying to recruit spies. We know they did that with particular detainees (a couple of whose testimony has had to be thrown out as a result). But there are also hints they have done that with others (including Binyam Mohamed. Is that widespread at all?

I only just got the book myself, and as a pastor this is kind of a busy season for me — but it’s on the “read after 12/25″ pile next to my bed.

On the back cover, though, I noticed the URL for the Guantanamo Lawyers Digital Archive. Would either of you like to say something about it?

I agree. It’s also intersting that it is written in so many different “voices.” It is a personalizing as anything I have read. Now and then someone will put in something about how they were afraid that their potential client really might be one of the worst of the worst and they had inner demons to deal with on whether they were doing the right thing and it makes them very human and it lets you explore some of your own uncertainteis.

It doesn’t but it does discuss some instances where this happened. One is the piece by Major David Frakt who represented an Afghan teenager named Mohammed Jawad who was tortured and illegal detained for more than six years (I also represented Mr. Jawad in his habeas corpus petition with Major Frakt). The government had tried to prosecute Mr. Jawad as a war criminal in a military commission for allegedly throwing a grenade at a military vehicle, injuring two U.S. service members and their interpreter. Two problems: this was not a war crime under any definition and the government had no reliable or credible evidence that Mr. Jawad actually threw the grenade. Major Frakt’s piece describes his experiences with Lt. Col Darrel Vandeveld, who was the prosecutor at Mr. Jawad’s military commission and who was originally very committed to convicting Mr. Jawad. Vandeveld, however, grew so disgusted at what he saw (Mr. Jawad’s mistreatment, the Defense Department’s suppression of exculpatory evidence, and the lack of proof), that he ultimately resigned.

Jonathan – are you convinced that after everything that has happened, civilian trials really will give detainees their “best shot?”

There’s an old adage that hard cases make bad law. We’ve already seen some decisions in US courts in “hard cases” like Padilla’s and Al-Marri’s that have opened some doors to the use of torture/abuse based evidence and established some very scarey precedents.

In a recent op piece, James Comey and Jack Goldsmith claimed that the torture issues are likely to be LESS of a problem for prosecutors in the civilian courts than they will be in the military commissions (where some cases have been determined to be too tainted by torture to be prosecuted). Do you agree with Comey and Goldsmith that the US civilian courts are likely to be more tolerant of the torture and abuse in those civilian proceedings?

More than one lawyer mentions the exchanges between soldiers at GITMO, with a lower ranking soldier saluting and reciting, “Honor Bound” and the senior replying, “To Defend Freedom.”

Maybe they learned that in the Cub Scouts.

Certainly, the digital archive contains unedited versions of many of the pieces in the book (we had to do editing in order to make these many powerful stories flow and give the book a narrative structure). But the archive is much more than that. It is part of a larger project to preserve as much primary source material about Guantanamo as possible so that history will not be lost. This is being done through NYU’s Tamiment Library, in conjunction with Seton Hall Law School. Mark and I both feel strongly that this information must be preserved so that future generations will understand and remember what happened at Guantanamo.

I think it’s more that the DOJ will be very reluctant to bring any cases in civilian courts that might be tainted by torture issues, and so therefore torture will be more of a problem in military courts — or in habeas cases for those in the “indefinite detention” category.

As I listen to Holder et al., civilian courts are for the clean cases.

Yeah boy, and I think we are going to have a whole slew of that coming out of Ghailani.

I think this is critically important. Having worked so hard to pry information loose, it would be ridiculous to let it disappear once more.

Might I suggest the addition of some timelines to the archive, to give some context to the information you are preserving?

I believe Marcy might be able to offer some assistance . . .

During the time of our own revolution, one of the things we complained against was taking colonists overseas for trials and holding fake judiciary proceeding to let off British soldiers that killed colonists. How does the history of that not enter into our consciousness and make us consider whether we are doing “right” with extraordinary rendition and CRST’s?

Marcy = Emptywheel

Speaking of timelines – the book has a really good one for FDL timeliners.

It’s probably too much to get into here, but as we’ve discussed before, it also seems as if the torture was at times directed towards making sure the torture victim fulfilled the “requirements” of the torture memos. I may be misremembering, but the circular set of identifications of al-Libi, al-Faruq and Zubaydah (as well as others) as each confirming (in their interrogations) that the others were, indeed, *high ranking operational al-Qaeda officials* once the memos made it seem that this was somehow (although never supported by legal argument or citation) a necessary element to being able to be tortured – was very suspicious.

Let’s see – I’ve been torturing A & B and C, and now am told that my torture is only legal if A & B & C are high ranking members of al-Qaeda (which I by now have pretty much figured they aren’t) So – as long as I get A to identify B and C, and C to identify A, etc. – I pad my defenses. If A ends up disappeared in Egypt or Libya and C ends up possibly killed in an assault where no none of the assault force will confirm his death and B ends up crazy and all the evidence gets destroyed or not made available because it is “secret” – well, all the better for me I guess. Not to say things happened that way, but to recognize that they happened in very odd ways – al-Libi and Zubyadah not being operational leaders of al-Qaeda seems to have been recognized for a long time, but those opinions were/are still being relied upon.

Mary, like all adages, that one is sometimes true but it is important to remember that in both Padilla and al-Marri (where the president asserted the power to seize and detain indefinitely individuals living in the United States), the government ducked the issue when it finally reached the Supreme Court by mooting the cases and charging both men criminally. This should be viewed as a concession by the government that it knew this extraordinary claim of executive power to treat the world as a battlefield was legally bankrupt and would have been rejected by the Supreme Court. In the subsequent criminal prosecutions, the government did not rely on evidence gained by torture in obtaining convictions.

In some instances, a detainee might get a more favorable result in a military commission than a criminal trial (look at the sentences Hamdan and Hicks received in a military commission, for example). But in my view the issue isn’t what’s better or worse for a given detainee but rather what system is consistent with our Constitution, values, and commitment to human rights–and that’s the criminal justice system.

I do not think civilian courts will allow in evidence gained by torture, nor do I think the government will seek to introduce it. Where the rubber hits the road is if the government tries to use latter statements by arguing that those statements are not tainted and are voluntary.

Jonathan, as you look at the coverage of Guantanamo in the media, who do you think has the best grasp of what’s going on? Far too many reporters seem inclined toward stenography (“Here’s what the WH/DOJ/DOD press release says . . .”) rather than doing actual legwork to see if the press release is accurate.

Thanks Mary, bmaz, Jonathan.

As a lawyer trained in the late 1960s, I am appalled.

It takes lawyers from supposedly great schools to twist the law.

I adhere to the law.

But I am ready for revolution.

I’m late to the discussion, but I wanted to thank Jonathan and Mark for their work.

Torture, the general breakdown of international law post-9/11, troubles my mind, and then there are specific cases that have mattered in my country (Canada) — Omar Khadr, the child soldier at GTMO, and several other cases where we believe that our security services (or yours) have relied on coerced evidence from prisoners at GTMO.

If Jonathan is still here, I’d be interested to know whether you had a chance to talk with Lt-Cmdr William Kuebler, who was Khadr’s lead military lawyer until GTMO politics smeared him and finally sidelined him earlier this year. Many Canadians are aware of the work Kuebler did for Khadr for years and the courage that took. He gave brilliant testimony to a Commons committee here a couple of years ago, and has schooled some of us in the problems of the commissions.

I know that’s a part of what seems to be the approach, but even though there is a lot of non-torture evidence that can be used against someone like KSM (whose wife and children won’t be in the courtroom I guess), he’s such a posterboy for the torture issue (especially because the torture apologists see him as their “best case” ) that I don’t think you can separate it so clearly.

Here’s the op piece I mentioned:
http://www.washingtonpost.com/wp-dyn/content/article/2009/11/19/AR2009111903470.html
and the reference
“In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court”
that left me a bit chilled.

I do think Holder took an important step by bringing federal criminal charges against KSM and four others accused of involvement in the 9/11 attacks. The problem is that the administration is continuing to use military commissions and indefinite detention for other detainees. There are no coherent, let alone valid, rules that explain who falls into what category. The cruel irony may be that only those against whom the government has substantial evidence will receive full due process in a federal trial, while those against whom the government’s case is weakest–including those who may well be wholly innocent of wrongdoing–will continue to be held without any trial at all.

Jonathan, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and Guantanamo.

Mary, Thank you for Hosting this great Book Salon.

Everyone, if you haven’t bought this definitive book about Guantanamo yet, here is a link.

Thanks all.

The cruel irony may be that only those against whom the government has substantial evidence will receive full due process in a federal trial, while those against whom the government’s case is weakest–including those who may well be wholly innocent of wrongdoing–will continue to be held without any trial at all

That’s a point that can’t be made too often.

Oh, I agree completely that it isn’t easy to separate it so cleanly. My point was more that when the DOJ *knows* that torture is such a central part of the case, they won’t touch it with a ten foot pole.

Holder to Gates: “You made this mess — don’t pawn it off on me.”
Gates: “It wasn’t me. It was the CIA.”
Paneta: “Don’t look at me. I wasn’t running my agency between 2001 and 2009, unlike some people in this conversation that I could mention.”
Obama: “Boys, boys, boys . . .”

I share your frustration. What really gets me is that what has occurred is worse than bad law being made – we are not even getting the chance to have even bad law made in many instances, and particularly on the accountability front; there is a wholesale scheme to prevent the access itself. I think to us lawyers, that is the most enraging aspect.

You were clear about the forces against accountability….Is there anything to do to push forward to prosecute/expose the crimes? Any forum?

And Mary — thank you always for your learned commitment to the One Big heartbreak topic of this century so far. Me, I can do the passion, but I don’t have the mental filing system you do, and it’s that amazing memory of yours that produces the poetry. I am so grateful to read you, always.

While too many journalists to name have done great work, I think there have been shortcomings, including when media outlets try to suggest there is gray when something is black and white. To give an example, the refusal to state that waterboarding is torture (instead stating something like “waterboarding, which some have referred to as torture”).

Amen.

Eve Gittelson is upstairs!
AHIP Stands Down

I’m toying with the idea of buying a copy for the Heritage Foundation’s “leading expert in criminal law, military law, military commissions and detention policy.”

I think he’s a guy named Cully Stimson.
http://www.heritage.org/about/staff/charlesstimson.cfm

IIRC, while he was with DoD, he had some thoughts that he shared with the public on the Guantanamo Lawyers. Maybe he needs an opportunity to formulate some new ones.

LOL – I can actually hear that exchange taking place.

The self serving ad hoc approach of Holder leaves me a little non-plussed. It is yet another fig leaf and, really a move on convenience not principle. I kind of object in some regards because it is cover for maintaining the status quo under the radar as you allude to @77.

If you want to wast your money just send me some bourbon instead. It will get more use and appreciation than Stimson would give the book.

I think all forums should be used, including forums in other countries under the concept of universal jurisdiction. In addition to criminal liability for those responsible for torture, we need to make sure that victims of torture have a judicial forum to seek a remedy for what happened to them in the past. This another avenue for accountability. The way the government has used defenses like “state secrets” is an outgrowth of the torture culture and seeks to create a level of impunity that is unacceptable in a nation committed to the rule of law.

Oh yeah — and that’s the short version. Thirty years from now, dissertations will be written by folks going through the memos and briefing papers. Of course, they will miss the verbal stylings of Rahm “$^@#%$#! Emanuel . . . unless there’s an audio recording system still at work in the WH.

Thanks Bev, and everyone else. This was a great conversation, and it’s wonderful exchanging ideas with you all. I hope to add more comments later.

Thank *you* for all your work with this project!

Jonathan, thank you for your time today and especially for your dedication to justice.

It’s been a terrific experience to have you available to address so many, and such difficult, questions. Thank you.

Darn- I had you down for socks on my xmas list. If only I had thought of bourbon.

Feel free to drop by anytime — here at FDL, or especially at emptywheel.

Thanks, Jonathan, for your labors with the ACLU on our behalf.

About the only “Congressional oversight” America sees anymore on these issues is documentary information that the privately-funded ACLU and other similar organizations have forced into the public domain.

Many thanks also to Mary, and to Mark, and the Seton Hall Law School students and faculty for their very important contributions to our knowledge about Guantanamo.

http://harpers.org/archive/2009/10/hbc-90005811