Republicans Protest Too Much

Right-wing Republicans have reportedly been mobilizing to block the appointment of two prominent lawyers to advisory positions in the Obama administration: Indiana University constitutional law Professor Dawn Johnsen and the Dean of the Yale Law School Harold Koh.

Johnsen is the administration’s nominee to head for the Office of Legal Counsel in the Department of Justice and Koh is nominated to be the Legal Counsel at the State Department. Both have a strong human rights record, Johnsen was Legal Director of the National Abortion & Reproductive Rights Action League and Koh served as Assistant Secretary of State for Democracy, Human Rights and Labor in the Clinton administration. Both have distinguished records of government service.

The legal commentator Scott Horton has cited anonymous sources in the GOP and DoJ who claim Senate Republicans are now threatening to filibuster the appointments unless the Obama administration agrees not to release three classified memos authored by one of John Yoo’s successors in the Office of Legal Counsel, Steven Bradbury.

The memos, which have been described by Glenn Greenwald on Salon.com as the “Rosetta stone” for documenting war crimes committed by the highest-level Bush DoJ officials, have been the subject of a determined legal effort by the ACLU to compel their disclosure. This effort has so far been opposed by the Obama administration despite its avowed commitment to transparency in government.

So, why not strike a deal? Because we still have not got to the bottom of what happened in our name. New information continues to emerge on an almost weekly basis. On Monday we saw the release of more material from the leaked International Committee of the Red Cross report on the treatment of High Value Detainees in CIA custody which revealed in detail for the first time the direct complicity of medical personnel in acts of torture in complete violation of the most basic of medical ethics.

This drip-drip of revelations is harmful in itself, undermining attempts to restore legitimacy to America’s struggle with terrorism. This will only end when there are no more revelations to emerge and that is why a full accounting for the abuses that have occurred since September 11th is so important. As is a renewed commitment to using the criminal justice system to fight terrorism rather than the ‘dark arts’ in which former Vice President Dick Cheney placed so much faith.

Holding ourselves to higher standard makes us smarter and more effective. The simple arithmetic regarding the number of releases without charge from Guantanamo makes it clear that with the ‘gloves off’ US officials were wrong about a detainee’s affiliations far many more times than they were right. We can do better than that.

Guantanamo's Uighurs Coming to the US?

(Originally posted on Daily Kos)

On Wednesday, Attorney General Eric Holder gave the first public indication that at least some of the Chinese Uighurs cleared for release from Guantanamo in September 2008, but unable to return home to China for fear of persecution, will be allowed to settle in the United States. His announcement followed the visit of the European Union’s Counterterrorism Coordinator Gilles de Kerchove to US.

De Kerchove is believed to have delivered the blunt message to the Obama administration that, unless the US demonstrated its good faith by resettling the Uighurs on American soil, it was highly unlikely that any European country would be prepared to help in the dismantlement of the Guantanamo prison camp by accepting other discharged detainees.

The Uighurs were among 22 Chinese citizens of Uighur descent who were captured near Tora Bora towards the end of 2001. The circumstances of their capture is unclear although former detainee Abu Bakr Qasim has claimed they were handed over to US forces for a $5,000 a head bounty.

The men are alleged to be militant separatists affiliated with the East Turkistan Islamic Movement (ETIM) who had received weapons training at a camp in Afghanistan with the apparent objective of fighting against China for Uighur independence.

None took part in hostilities against the United States nor bore any apparent animosity towards the west. Indeed, Abu Bakr Qasim told reporters that he had expected the US to be sympathetic to his people’s cause.

In May 2006 five of the original group were released from Guantanamo and resettled in Albania although one, Adel Abdu Al-Hakim, has subsequently been allowed to relocate to Sweden.

The US government finally conceded in September 2008 that none of the remaining Uighurs in Guantanamo could be categorized as an ‘enemy combatant’ and in October the US District Court ordered the Uighurs released. They have been trapped in limbo ever since with no country prepared to offer them a home for fear of angering China.

The saga of the Uighars has only served to underline the comments made this week by Lawrence B. Wilkerson, former chief of staff to Secretary of State Colin Powell, in a guest post on The Washington Note. Wilkerson lambasted the ‘utter incompetence’ of the battlefield intelligence screening process that saw so many individuals who posed no threat to US interests transferred to Guantanamo and proclaimed to the American public as ‘the worst of the worst’.

In Wilkinson’s words:

Several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released… But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror.

Hundreds of detainees have been held in Guantanamo for an unconscionable length of time in defiance of international law and notions of due process. Wilkinson estimates that only two dozen or so could actually be considered terrorists. The rest have suffered long enough. The Obama administration must set an example and put right a wrong that has cast a long shadow over America’s global reputation. It can start by offering the Uighurs of Guantanamo a new home on American soil.

What Beverly Eckert Can Teach Us About Seeking Accountability

With each new sudden loss of life, like the crash of a Continental Airlines flight near Buffalo on February 13, a fresh awareness of the fragility of life and a new sense of urgency washes over us like a powerful wave.  In particular, the life of Beverly Eckert, a passenger on the plane, offers special inspiration for all citizens who believe in holding our government accountable.

Ms. Eckert, who lost her husband in the 9/11 attacks, led families of other 9/11 victims in seeking a thorough investigation of mistakes made by the U.S. government that prevented it from thwarting the attacks.  The New York Times reported the obstacles the families encountered.  They were told all the reasons why such an investigation would not be good for the country.  It would expose weaknesses in the government’s counterterrorism capabilities, for example.  But Beverly Eckert and others pressed on relentlessly until they achieved their goal.  They portrayed resistance to an investigatory commission as a shameful abdication of the government’s moral responsibility to the 9/11 families, and they understood that failing to investigate would impair the nation’s ability to remedy the failures that made 9/11 possible.

We are at a similar juncture regarding this government’s responsibility to investigate apparent crimes in conjunction with the “war on terror.”  Just as Beverly Eckert and the 9/11 families were told that looking backward would harm the nation, we are being told that looking back at alleged crimes of the Bush administration will undermine the unity we need to solve the many serious problems our country faces.

But it is precisely the failure to look back that will gravely harm our nation in the long run.  It is likely that other acts of terror will be committed against the United States and that a future administration, perhaps even this one, will feel enormous pressure to subvert the law again.  If we refuse now to look at our government’s past illegal acts in the belief that our society is too fragile, we will — in setting that precedent — make it even harder for a future administration to resist pressure to break the law.  We will also undermine the ability of successive administrations to hold government lawbreakers accountable.

Beverly Eckert shunned the impulse in some quarters to make someone “pay for every human accident.”  But, for her, the magnitude of 9/11 made understanding what went wrong imperative so that we could learn how to prevent another similar catastrophe.  In examining the “war on terror,” we must make a similar distinction between mistaken policy judgments and serious crimes.  Authorizing torture is and was a crime, and, as Rep. John Conyers and others have noted, we must thoroughly understand how our government came to do it and the full scope of its consequences, in order to make clear our commitment to preventing its use in the future.

When it comes to upholding the law, we can’t keep saying next time we’ll really mean it.  Each successive kicking of the can down the road makes it more unlikely we will ever have the will to effectively punish and deter these kinds of crimes.  Take a lesson from Beverly Eckert and call your Senators today.  Tell them we must not give a pass either to ourselves or to policymakers who authorized illegal acts.  Looking the other way now means giving a green light to future abuses.  We need a thorough and impartial investigation of what has been done in our name over the past 8 years.

Two Thirds of Americans want Accountability

A USA Today/Gallup Poll published earlier this week found a strong desire amongst Americans for investigations into human rights abuses committed during the Global war on Terror by the Bush administration.  38% of those interviewed expressed a preference for criminal investigations into these abuses.  24% favored a truthfinding inquiry without prosecutions.

While the Obama administration continues to argue for looking forward rather than back, the argument for accountability is gaining momentum propelled by the initiatives in the House and the Senate to investigate Bush era abuses.  The USA Today/Gallup Poll suggests that Senator Leahy and Representative Conyers are better in tune with the mood of the country than the Obama White House. Republican Senator Arlen Specter spoke out against accountability this week arguing, “this is not Latin America.” How true, Latin American countries like Guatemala, Chile and Argentina have demonstrated the strength of their national character by examining the human rights abuses that occurred on their soil.  The United States has yet to measure up to that standard.  The American people want accountability – the administration should heed their call.

14 Reasons for Accountability

Below is a list of 14 reasons why I think it’s important to thoroughly investigate interrogation and detention practices and policies since 9/11/01 and to initiate criminal prosecutions where evidence is developed that warrants prosecution.

1.  President Obama has said he wants to look forward rather than backward.  This implies a false dichotomy between the two.  Without examining the past, we cannot fully understand how to ensure that whether the US government follows the law is not left up to the whim of the current occupant of the White House.  A thorough investigation will provide information needed to determine whether and which policy/regulatory/statutory changes are needed to prevent recurrences of bad practices.

2.  President Obama has also said that “no one is above the law.”  By failing to thoroughly investigate the practices of the last 8 years, he would be saying that, in fact, some people ARE above the law.

3.  The investigations that have been conducted by the Bush administration were inadequate.  They were all limited in scope and failed to look up the chain of command.

4.  A thorough investigation would restore the public’s trust by showing that the government is not trying to hide the facts.

5.  The government is legally required to prosecute grave breaches of the Geneva Conventions.  Failing to do so would, in and of itself, be unlawful.

6.  Real accountability demonstrates the government’s seriousness about changing course, as well as the seriousness with which the government views the offenses.

7.  It is a way of demonstrating support for rank-and-file soldiers by showing that no one is above the law and that scape-goating low-level soldiers is not acceptable.  Emphasizes that officers and civilian leaders who set policy are accountable for issuing clear and lawful orders to their subordinates.

8.  Will help restore the reputation and influence of the U.S. in the world.

9.  Assures other countries that U.S. speaks from a position of moral authority when asking them to respect the human rights of U.S. personnel.

10.  Those who suffered torture, cruel treatment, and arbitrary detention are entitled to see those responsible brought to justice, as part of their healing process.  They are also entitled to reparations, and those not guilty of any offenses are entitled to have their names cleared.  Justice can defuse anger of victims and those who might seek vengeance on their behalf.

11.  Without the threat of prosecution, perpetrators are unlikely to be forthcoming about their actions.  There is little evidence from the experience of other countries that offering pardons or amnesties motivates perpetrators to volunteer inculpatory information.

12.  Even many countries that initially granted amnesty for human rights crimes because they thought prosecutions would be too divisive subsequently revoked the amnesty (e.g., Argentina).

13.  Prosecutions are a way of affirming that the crimes prosecuted are an injury to society, not just to the individual victims.

14.  Investigations and criminal prosecutions, where warranted, can help deter future crimes.  Bush administration officials, including Vice President Cheney and CIA Director Hayden, continue to aggressively defend the use of waterboarding and other harsh interrogation tactics.  If people with similar values and perspectives come to power again in the future, there is every reason to think they will resort to the same illegal practices, unless there are serious consequences for doing so.