Thursday, May 27, 2010

The slow death of law, part 1

           Several articles in the last few days have made a new stage of Obama’s Presidency – the consolidation of the abolition of habeas corpus, of the disrespect for a system of law and decency, of an emerging and, sadly, bipartisan tyranny - clear. Jack Balkin, the constitutional lawyer who teaches at Yale (see Balkinization website), has named this bipartisan movement across Republican and Democratic administrations a new stage of law: a national surveillance state. 

       When they were out of power, Democrats objected to this.  But once in power, many Democrats forget the very reasons they opposed a police state under Bush.  Correspondingly, Republicans are invested in protecting war criminality and other crimes (Rove’s firing of federal attorneys and bending the law to influence elections as in the strange tale of the jailing of former Governor Siegelman of Alabama).  

       Balkin offered this concept to describe how dramatic shifts in/against the law become bipartisan and hence, politically acceptable over time.  This instance is special and frightening, however, because it attacks the very basis of Anglo-American law: habeas corpus, the right of each person to a day in court and not to be tortured.  In the Bush-Cheney administration, the stick was bent so far to Reaction – to an authoritarian regime, one reliant on illegal spying on Americans, arbitrarily  locking up suspects indefinitely, torture even of American citizens (Jose Padilla), and now killing Americans by Presidential order and without any judicial proceeding (Obama’s order about the American citizen, the imam Awlaki who, now that there is an assassination order out on him, the New York Times reported last week, is apparently broadcasting incitements to murder American civilians - to murder innocents as a response to the American murder of innocents).   

     Now Obama is a constitutional lawyer and taught constitutional law at Chicago.  In his campaign, he spoke about how the Bush police state makes us less safe and/by making us less free.  This emerging, bipartisan tyranny is particularly sad because as a candidate, Obama named the danger, barred water-boarding and some other forms of torture by executive order his second day in office, and plainly knows better.  He is moved here, as much as in his betrayals of the anti-war movement (he is an anti-"dumb Iraq war" candidate, but even though he is withdrawing troops from combat, he plans to leave a garrison of 100,000 – 50,00 soldiers, 50,000 mercenaries – on bases in Iraq), by crass political considerations. 

          The strictly authoritarian party now mislabeled Republicans or “conservatives” seeks to use the infinitely expansive and vague  “war on terror” to abolish American law.  They live on scaring citizens, so that even the slightest gestures at courage and principle – say, trying Khalid Shaikh Mohammed in New York City as Attorney General Eric Holder, in his best moment in office so far, wanted to.  But the “courageous” leaders of the United States of America, with its $708 billion official military budget (2 1/2 times Cold War levels - see here), 800 bases abroad (the French have 5, no one else any), will give up law at the threat of a terrorist attack, without notice.   Bin Laden could not do this to the United States; only Bush-Cheney and Obama could sacrifice what is decent in America to the supposed needs of a "war on terror."

        In addition, America fires drone missiles at Pakistan, a country we have not declared war on (we just aggress in this case, Somalia and Yemen, without the affectation of law).     

         Murdering 60 civilians, the Pakistani government says, for every terror suspect (recall that our “intelligence” about the tribal areas is weak; we have not killed  Bin Laden in 9 years; Pakistani officials may have been generous to the United States in suggesting that it only murders 60 innocents for every “terrorist”).  The rightwing or warmonger "think" tanks in Washington say, “oh, we’re much better than that.  We only kill 5 innocents for every terrorist.”  Good to know that on a warmongering, pro-"American" account, one intended to smooth the way for such activities, the CIA/Xe fires off missiles from Langley to murder “only” 82% civilians.  Al-Jazeera rightly named this "collateral murder," except that there is nothing collateral about it.  See here.

         Candidate Obama would have recognized that these policies of a President are crazy and counterproductive (they are also evil).  Such actions  make ever new people who hate America for murdering their parents, friends, children, and create a political screen, and, as an outlier, recruits for terrorism.  In addition, they make the over-technologized American military look like cowards (a mirror of but worse than the Company in Avatar).  It is not clear to me how self-respecting military or “intelligence” people carry out such murders (now one has but to carry water to a suspected terrorist’s house and appear on the distant screen of some agent who doesn’t even speak the language – good enough "evidence" to off the watercarrier...) or how President Obama, a decent and intelligent man, looks at himself in the mirror every morning. 

         The US has sought to prevent legal discussion of these murders, but Phillip Alston, the UN special rapporteur "on extra-judicial, summary or arbitrary executions" and an American law professor, is about to deliver a report June 3 addressing the culpability of private citizens/non-soldiers (CIA and Xe operatives) in carrying them out. The UN special rapporteurs on torture (Manfred Nowak) and now summary executions have both directed reports and recommendations for judicial action against American leaders.  I will comment more on this in the second part of this post, but the issue Alston raises, while indeed a form of criminality, is nothing to the moral outrage and political counter-productiveness among ordinary people which American long-distance murder  creates (see Charlie Savage in the New York Times today here).

         For fear of being condemned by the Republicans, most Democrats are willing to sacrifice even core principles of law.  A bipartisan consensus about torture – at minimum that those who did it are above the law; more likely, that many forms of torture probably go on at black sites, like the one at Bagram. There is another reason: again, the torturers are too much of the Bush administration and the leaders of the CIA (not to mention Rove).  Colin Powell probably resisted enough not to be on trial for torture (aggression is a different matter - Powell is guilty of that - but American officials will not be subject to Nuremberg/Tokyo prosecutions for this, the first and greatest of international crimes).  Every other Bush official concerned with foreign policy, "legal advice" and treatment of prisoners, however, is a prime candidate.  

         Further, holding the support of the American people for the 5 aggressions and occupations – Iraq, Afghanistan, Somalia, Pakistan, Yemen – depends on lack of pubic awareness.  Defeated and frightened by protest, the elite abolished the draft after the Vietnam war.  Bush launched the first modern war without taxes – cutting taxes especially for the rich – while borrowing from China.  Talk about a shell game: “There is a dangerous threat," Bush shouted, "shop til you drop…” 

        Ordinary people do not like either war or occupation (Obama had to put his popularity on the line to put over the escalation in Afghanistan).  But even being broke and in a depression (17.2% real unemployment, 9.7% official unemployment, as David Leonhardt strikingly revealed in the New York Times here), the costs of the war are concealed from ordinary Americans, borne only by the minority who enlist and are re-upped or face stop-loss in the national guard, as well as their families and friends.  

        America has a mercenary army and is fighting the most undemocratic of wars/occupations.  Despite considerable discontent and major protests in the past (including the pre-war protests and the election of Obama), an increasingly bipartisan consensus in the two party elite on  an aggressive imperial police state is unfolding before our eyes.  The five stories in this post and the next make it clear that much of this is unnecessary, that it is possible for leaders to stand up against this and for decency (what Obama seemed to be, still, to some extent, is on Palestine and Iran), and provide an alternative.

     The first concerns the accession of Nick Clegg in the Tory-Lib Dem alliance in England.  He sought to turn back Labour’s criminal erosion of civil liberties there, and the new Tory Prime Minister, Cameron, agrees.  Further, the Tory Foreign Minister William Hague has announced judicial investigations about the Labour government’s involvement in torture.  This will run, if allowed to proceed, high up – Tony Blair and perhaps David Miliband, inter alia.  

         As Scott Horton rightly underlines, this is what a democracy does about war criminality.  It does not bloviate, with Obama, about “looking to the future.”  It assesses responsibility, and works to remove the stain of Torquemada or Himmler, from its record:

     In a recent ruling, some of Britain’s most senior judges suggested strongly that they were also highly dissatisfied with the government’s statements on the subject, which they characterized as misleading. It’s clear that the Labour government was engaged in the same sort of dissembling about torture that marked the Bush Administration, using wiggle words with secret meanings. If the truth is now to emerge, it serves the public interest in Britain, just as it would serve the U.S. public interest, for it to emerge from a detached and depoliticized process–so the formal judicial inquiry is the appropriate tool, just as a commission of inquiry would be for the United States.”

     Unlike the Obama administration’s trend (starting decently about barring water-boarding and releasing torture memos but recently in dramatic and continuous decline), under this new coalition, Britain moves, once again, toward the rule of law.  It conducts itself as a self-respecting parliamentary government, one which insists on the law, and will not allow itself to become desperate and criminal.

       Perhaps it was lucky for Britain that Labour was in power to be suborned by the U.S. (Blair was “Bush’s poodle” as the British anti-war movement aptly named him).  The Tories and the Lib-Dems were gutless sycophants about the war even in this campaign (see here), but they stood up against torture and for civil liberties.  In America, Bush and Cheney turned the Republicans into authoritarians.  The conservative friends of law – say, Scott Horton and Andrew Sullivan – were outside this party.  So there is no defense of law or liberty from a conservative perspective within mainstream American politics, no one to call Obama to account (to force him to  “be Obama”).  The main pressure in American two party competition is toward Reaction or as I call it, a right-wing two step.  Hence, the sad drift…

       The second article, “Tainted Justice,” a Monday editorial from the New York Times denounces the initial use of a military tribunal on Omar Khadr.  Khadr, a Pakistani born in Canada,  was detained at the age of 15 as an enemy combatant, fighting alongside his father against the American invasion of Afghanistan.  He was tortured in Bagram and Guantanamo for 8 years.  The editorial tells his story:

     “During a recent pretrial hearing at Guantánamo, it emerged that his initial questioning at Afghanistan’s Bagram prison occurred while he was sedated for pain and shackled to a stretcher following his hospitalization for severe wounds suffered in the fighting.”

      “His first interrogator, identified at the hearing only as Interrogator One, was an Army sergeant later convicted of detainee abuse in another case. He used threats of rape and death to frighten the teenaged Omar Khadr into talking. Another witness recalled seeing him hooded and handcuffed to his cell with his arms held painfully above his shoulders. When the hood was removed, he testified, he could see that the teenager was crying.”

    If you can take this in without shuddering for Khadr and for America, you are stronger than me.

         Omar was a child whom Americans tortured.  The law treats minors as not having reached full adulthood.  Further,  the US is bound by international agreements – the Geneva conventions, the Convention against Torture - as well as decency on this matter; Article 6, section 2 of the Constitution, the Supremacy Clause, makes such treaties the highest law of the land.

         The US tortured a confession out of him; as is well established since World War II among military people,  torture never yields valid information, but rather what the torturer wants to hear.  See What the torturer knew here.  What does it say of the United States of America that it tortures children?

      The fantasy “24” is mercifully gone as of this week, but its true face haunts the military commissions.  As the Times editorial points out, justice internationally and in the U.S.  mandates some attempt to rehabilitate children.  The US has probably made Khadr more on an enemy – 8 years of torture and indefinite detention will do that - if it has not broken him, as it did Padilla (whose defense attorneys describe him as a "chair"); it will also shock every person who hears of the case.  Could an enemy have plotted to degrade American military tribunals more thoroughly than this?

      At best, the military commissions are a jury-rigged, political replacement for the rule of law which would have dealt with this case comparatively decently and efficiently (the law would have cut him loose swiftly, perhaps more swiftly than even the Times suggests)   No one could bring down what is decent in America with a bomb; it takes American officials, including now Gates-Obama, to do that.

       Though Obama pursued closing Guantanamo seriously for a while, he has now reneged on this goal. As President of a somewhat reformed torturer regime, he cannot bring confessions secured under torture into a courtroom.  Hence, the military commissions.  But what can one say – the editorial does pretty well – about making the first case one of a tortured and thrown away for 8 years, child? 

      The Times is a pro-government newspaper,  For instance,  it hid information about Bush spying illegally on Americans for over a year, probably costing Kerry the 2004 election.  If the Times had acted responsibly, this outrage would at least have required an even greater shifting of votes from Kerry to Bush through computerized voting machines which leave no paper trial (see my Corrupt before a vote was cast here).  More importantly by failing to oppose executive illegality, it undercut America decency. Its editorial gives a mild approximation of how decent people abroad see us.  See Imagine here

New U.K. Government Opens Formal Torture Inquiry

By Scott Horton

How does a newly elected government concerned about civil liberties and the accountability of its predecessor react to credible claims that intelligence operatives were involved in the torture of prisoners? Britain’s new foreign secretary, Conservative William Hague, shows the way. The Guardian:

"A judge will investigate claims that British intelligence agencies were complicit in the torture of terror suspects, William Hague, the foreign secretary, said tonight. The move was welcomed by civil liberties campaigners and may put pressure on the Labour leadership candidate and former foreign secretary David Miliband, who was accused by Hague, while in opposition, of having something to hide. Miliband has repeatedly rejected the accusation and broadly indicated that he or his officials may have been misled by foreign intelligence agencies about the degree of British complicity."

"Hague’s remarks appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work. Hague will come under pressure to ensure the inquiry is public and comprehensive. He first called last year for an independent judicial inquiry into claims that British officials had colluded in the torture of Binyam Mohamed, the former Guantánamo detainee and a UK resident. Mohamed claimed that he was tortured by US forces in Pakistan and Morocco, and that MI5 fed the CIA questions that were used by US forces."

The usual issues will surround the inquiry. Will immunity be offered for testimony? Will the proceedings be open to the public? What judge will be tapped to handle it?

Notwithstanding the Guardian’s suggestion of surprise, this development was widely anticipated. Hague, while serving as shadow secretary, sharply criticized Miliband over his management of the torture issue. In a recent ruling, some of Britain’s most senior judges suggested strongly that they were also highly dissatisfied with the government’s statements on the subject, which they characterized as misleading. It’s clear that the Labour government was engaged in the same sort of dissembling about torture that marked the Bush Administration, using wiggle words with secret meanings. If the truth is now to emerge, it serves the public interest in Britain, just as it would serve the U.S. public interest, for it to emerge from a detached and depoliticized process–so the formal judicial inquiry is the appropriate tool, just as a commission of inquiry would be for the United States.

The new coalition Conservative-Liberal government in Britain is slowly revealing its hand. A number of commentators have wondered how these two parties could mount a consensus program, given that they seem to represent the extremes of the parliamentary spectrum. However, British parliamentary history points to some significant common ground–especially in the Old Whig tradition of the late eighteenth and early nineteenth centuries. The Old Whigs put a premium on personal freedom and endorsed a moderate, steady reform agenda. Their greatest spokesman, Edmund Burke, emerged as a hero to later generations of Conservatives (many of whom are shocked to learn that he was actually not just a Whig but at times a sharp critic of the Conservatives). As Andrew Sullivan has recently argued, the emerging program of the Cameron-Clegg government in fact highlights a revival of civil liberties. It should therefore come as no surprise that the government now moves decisively to do what its Labour predecessor sharply resisted: a comprehensive formal investigation of torture allegations. At this point, no issue is more fundamental to the civil liberties agenda. The Obama Administration should watch and learn a bit about how a modern democracy approaches the question of accountability for torture.

EDITORIAL

Tainted Justice

Published: May 23, 2010

       Justice Department and Pentagon officials have chosen a troubling case for the first trial under the revisions that were adopted to the Military Commissions Act in 2009 — a Toronto-born Guantánamo Bay detainee named Omar Khadr. Mr. Khadr, 23, has been in detention since he was 15, when he allegedly threw a hand grenade during a firefight in Afghanistan that fatally wounded Sgt. First Class Christopher Speer.

Mr. Khadr was not a mere bystander. He was indoctrinated into armed conflict by his father, a member of Osama bin Laden’s circle who was killed by Pakistani forces in 2003. But if his trial goes forward this summer as scheduled, he will be the first person in decades to be tried by a Western nation for war crimes allegedly committed as a child.

That has drawn justified criticism from United Nations officials and civil liberties and human rights groups. The conditions of Mr. Khadr’s imprisonment have been in clear violation of the Geneva Conventions and international accords on the treatment of children.

During a recent pretrial hearing at Guantánamo, it emerged that his initial questioning at Afghanistan’s Bagram prison occurred while he was sedated for pain and shackled to a stretcher following his hospitalization for severe wounds suffered in the fighting.

His first interrogator, identified at the hearing only as Interrogator One, was an Army sergeant later convicted of detainee abuse in another case. He used threats of rape and death to frighten the teenaged Omar Khadr into talking. Another witness recalled seeing him hooded and handcuffed to his cell with his arms held painfully above his shoulders. When the hood was removed, he testified, he could see that the teenager was crying.

In January, the Supreme Court of Canada condemned the questioning of Mr. Khadr by a Canadian official who then shared the results with American prosecutors. The ruling cited Mr. Khadr’s lack of access to counsel and his inclusion in the military’s notorious “frequent flier” program, which used sleep deprivation to elicit statements about serious criminal charges.

A ruling from the military judge on the admissibility of Mr. Khadr’s statements is not expected for several weeks. But there’s already a bad lingering taste from the hearing, which began just hours after Defense Secretary Robert Gates formally approved a new set of rules for the tribunals and before Mr. Khadr’s lawyers or the judge had a chance to review them. The rules are an improvement over those that governed the Bush commissions, but they have flaws, including the use of hearsay.

During the hearing, the Pentagon barred four reporters from covering any military commission because they printed the name of Interrogator One, even though it has been public for years and is readily available on the Internet. The administration needs to restore the reporters’ credentials.

It also needs to press forward with negotiations on a plea deal. The evidence that Mr. Khadr threw the deadly hand grenade is not clear-cut. Even if it were, it would be impossible to overlook his abuse in custody, and status as a juvenile, which deprived him of mature judgment.

After Mr. Khadr’s eight-year ordeal, it would be no disrespect to Sergeant Speer to return Mr. Khadr to his home country under terms designed to protect public safety and strive for his rehabilitation.