A Tale of 2 Gitmo Opinions
October 13, 2010 3:16 PM   Subscribe

In Gitmo Opinion, Two Versions of Reality. "When Judge Henry Kennedy Jr. ordered the release of a Guantánamo Bay detainee last spring, the case appeared to be a routine setback for an Obama administration that has lost a string of such cases. But there turns out to be nothing ordinary about the habeas case brought by Uthman Abdul Rahim Mohammed Uthman, a Yemeni held without charges for nearly eight years. Uthman, accused by two U.S. administrations of being an al-Qaida fighter and bodyguard for Osama bin Laden, is among 48 detainees the Obama administration has deemed too dangerous to release but 'not feasible for prosecution.' A day after his March 16 order was filed on the court's electronic docket, Kennedy's opinion vanished. Weeks later, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government's case against Uthman."
posted by homunculus (92 comments total) 18 users marked this as a favorite

 
Thank God James Madison is dead, because this would kill him.
posted by absalom at 3:17 PM on October 13, 2010 [4 favorites]


Hi, guys!
posted by Joe Beese at 3:23 PM on October 13, 2010 [16 favorites]


And here, in this case, what we learned was, privately, secretly, again, the Justice Department acknowledged to the judge that they had erred in the original publication of his opinion, that they hadn’t properly redacted it before they allowed its release. They had it removed. They resealed the decision. They gave the judge new guidelines, new redactions, and he issued the new opinion. [emphasis mine]

But remember, kids, we daren't make any moves toward repealing Don't Ask, Don't Tell without going through an unwilling Congress — that would be against the separation of powers!
posted by enn at 3:35 PM on October 13, 2010 [19 favorites]


What Was Deleted | Why It Matters | See It

This is all you need to know about how the internet has changed political realities forever. You may like it, you may not, but there it is.

What was deleted. Why it matters. See it.

A fine replacement / complement to "Don't tread on me."
posted by chavenet at 3:44 PM on October 13, 2010 [13 favorites]


They gave the judge new guidelines, new redactions, and he issued the new opinion.

So, is the material that was present in the first opinion but not the second redacted or deleted? It is not at all unusual for opinions to be filed under seal. I don't have time to read all the links right now, but it's not clear to me whether the judge revised the opinion itself or whether he simply redacted additional material at the request of a party.
posted by The World Famous at 3:50 PM on October 13, 2010 [1 favorite]


Worth it to read the article, TWF.
posted by small_ruminant at 3:56 PM on October 13, 2010


The creation of the additional opinion stemmed from a mishap inside the Justice Department: Kennedy's first opinion was accidentally cleared for public release before government agencies had blacked out all the classified information it cited.

And what harm was caused by the information which was released by bureaucratic bumbling? What is the government's justification for keeping information from the public sphere when the only damage which occurs is to the super super sekrit national security state?
posted by banal evil at 3:56 PM on October 13, 2010 [1 favorite]


among 48 detainees the Obama administration has deemed too dangerous to release but 'not feasible for prosecution.'

Jesus fucking Christ. "Not feasible for prosecution"? Is that a fancy way of saying they can't be proven guilty? If that's the case, on what basis have they been deemed "too dangerous to release"? Why were they rounded up in the first place?

Hmm... What does "habeas corpus" mean again? Oh yeah: Proof that a crime was even committed in the first place. And the would-be prosecutors don't even have that.

In summary: Not only can't US officials prove these people are guilty of crimes, they can't even prove the crimes of which they stand accused were ever committed at all.

And yet, they are in prison. Indefinitely. Quite possibly being tortured. Bravo, America.

(You might want to think about changing those last couple lines of your anthem.)
posted by Sys Rq at 3:59 PM on October 13, 2010 [26 favorites]


I'm really at a loss for words. As I read this article, I kept thinking about that Pentagon Papers documentary that was posted here last week. I hope I'm not being hyperbolic, but I see similarities between the Defense Department under LBJ/Nixon and the Justice Department under Bush/Obama.
posted by Guernsey Halleck at 3:59 PM on October 13, 2010 [1 favorite]


Worth it to read the article, TWF.

I don't doubt that it is. I have skimmed them and will read more thoroughly when I have more time.

But I still don't understand - was the opinion redacted or edited? It looks to me like it was redacted, which really isn't controversial at all.
posted by The World Famous at 4:00 PM on October 13, 2010


Skim harder.
posted by polyglot at 4:14 PM on October 13, 2010 [4 favorites]


Weeks later, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had been removed

Emphasis mine. Uthman's release is still the order of the court, right?

So, this didn't happen to change the outcome. What's the supposedly nefarious point? Is there something particularly embarrassing in there? I just read through, and honestly, I don't see anything worse than weaknesses you see in other state cases sometimes -- though I think it's worth noting that some of the removed parts seem to support the contention that Uthman was associated with al-Qaeda, so it's not all about that. Of course, I also don't see anything that seems to have intelligence/security implications in the removals, either. So what's the point?

Either way, I suppose I don't think it's really OK to go back and re-create the court records like this. But if for some reason it actually were important, what would be the right thing to do? Should the entire decision remain classified or should the judge write a new version that doesn't contain the evidence they want to redact?

This is all you need to know about how the internet has changed political realities forever. You may like it, you may not, but there it is. What was deleted. Why it matters. See it.

Yeah. Once the cat is out of the bag, there's really not much to do.

But remember, kids, we daren't make any moves toward repealing Don't Ask, Don't Tell without going through an unwilling Congress — that would be against the separation of powers!

Not so much separation of powers as low hanging fruit for reversal, I'd think.
posted by namespan at 4:24 PM on October 13, 2010 [1 favorite]


The more America votes for hope and change, the more things stay the same.

Pardon me if I don't wait for Obama who swore an oath "to defend and protect the Constitution" to even mention this.

Nor do I expect the "strict Constitutionalists" on the Supreme Court to say anything at all about this most recent insult to the letter and spirit of that naïve 9/10 document.
posted by three blind mice at 4:24 PM on October 13, 2010 [2 favorites]


So, in this case, this detainee was arrested in Pakistan on December 15th, 2001. This was in the middle of a five-day battle between US forces and Osama bin Laden’s fighters in Tora Bora, in a cave complex in Afghanistan, not in Pakistan, where Uthman was arrested. You know, in the original opinion, Kennedy noted that. He said it was, you know, unrebutted; both sides agreed. Both the government and the detainee himself acknowledged that he was detained by Pakistani authorities in Pakistan. The opinion vanishes. The new one comes out. All of a sudden, the judge writes that the detainee acknowledges—he, himself, admits that he was arrested in late December 2001 near Tora Bora. He has moved the location of the detainee’s arrest, the date of his arrest, to a different country, weeks later, moving him closer, really, to where bin Laden was believed to have been and where he was believed to have been fleeing. So, in the opinion that the public sees, he suddenly looks far more threatening, far more like an al-Qaeda fighter, like a bin Laden bodyguard, and far less the appearance that the judge originally claimed him to have been, which is somebody who had turned himself in to authorities in Pakistan weeks earlier.
It was edited.
posted by Catblack at 4:26 PM on October 13, 2010 [4 favorites]


We will not even attempt to prove their guilt, but we will hold them in prison nonetheless.

Take away all the fancy latin and lawyer talk, and this situation is simply the acknowledgment, that that we have fallen so far as to abolish the most fundamental civil right that was established almost eight hundred years ago in England. We the heirs of Magna Carta, have fully repudiated our heritage - or is it refudiated.

It is no longer appropriate to ask: are we back in the 50's, or the 30's but are we back in the 1200's.
posted by VikingSword at 4:32 PM on October 13, 2010 [10 favorites]


What's the supposedly nefarious point?

That the Obama Department of Justice is forging judicial records to conceal the fact that the men they want to indefinitely detain without trial are being held on unreliable evidence obtained by torture.

How does that measure on your Not Really OK-meter?
posted by Joe Beese at 4:43 PM on October 13, 2010 [14 favorites]


Kennedy wanted to re-release the opinion with the "bad" bits blacked out, the DoJ balked (the context might give something away, supposedly?) and convinced Kennedy to, based on a redacted version of the original, re-write it so that nobody would know where and what had been redacted.
posted by BungaDunga at 4:48 PM on October 13, 2010 [3 favorites]


The sources said this opinion was meant to be published. But for reasons that remain unclear, the edited opinion became the starting point for the creation of an entirely new version.

that is strange.

A day after his March 16 order was filed on the court's electronic docket, Kennedy's opinion vanished. Weeks later, a new ruling appeared in its place.

so why was not the document sent in printed form?

or would the printed document have also been changed, cause it has been changed not merely redacted for intelligence matters.

this seems to hinge on the electronic docket.
the motivations are not so clear...

Classification experts could not recall another case in which a second decision was secretly created.

oh, the money shot

The government is now seeking to amend Hogan's order to include six new broad categories of information that it can restrict without review by a judge unless the detainee objects.

remember to file them electronically.
posted by clavdivs at 4:50 PM on October 13, 2010


That the Obama Department of Justice is forging judicial records to conceal the fact that the men they want to indefinitely detain without trial are being held on unreliable evidence obtained by torture.

pulling Jubas' beard I see.
posted by clavdivs at 4:52 PM on October 13, 2010


redact that
posted by clavdivs at 4:52 PM on October 13, 2010 [1 favorite]


Skim harder.

Cute. Have you carefully read both opinions?
posted by The World Famous at 4:53 PM on October 13, 2010


Kennedy wanted to re-release the opinion with the "bad" bits blacked out, the DoJ balked (the context might give something away, supposedly?)...

INTERROGATION SUMMARY - GUANTANAMO DETENTION FACILITY - 04:30 HOURS

Agent [REDACTED] ordered prisoner to remove his uniform shirt and pants. After prisoner complied, Agent [REDACTED] strapped him to a [REDACTED]. [REDACTED] were applied to the prisoner's [REDACTED] and [REDACTED]. After [REDACTED] was applied for several minutes, prisoner stated that he would provide information against Uthman in exchange for release from the [REDACTED].
posted by Joe Beese at 5:01 PM on October 13, 2010 [5 favorites]


Wow. And here all this time I've been worrying about the rise of the Tea Party in Canada.
posted by sneebler at 5:16 PM on October 13, 2010 [1 favorite]


That the Obama Department of Justice is forging judicial records to conceal the fact that the men they want to indefinitely detain without trial are being held on unreliable evidence obtained by torture.

Let me just get this clear before we continue: you are in no uncertain terms contending that one purpose of the re-written report is to conceal the fact that torture took place and that some of the evidence against Uthman was obtained by torture.
posted by namespan at 5:17 PM on October 13, 2010


lower amir," or leader, "in the Kandahar guest house." JE 36 at 2.23 Respondents contend Belmar was referring to the al-Ansar Guesthouse, which the Defense Intelligence Agency indicates is also called the Kandahar Guesthouse and "had strong connections to al-Qaida." JE 6 at 2.24

so, ya, it was the "kandahar guest house" then it became "kandahar guest house" with al-qaida connections.

there is a motel-chain analogy here.
Not clear on who this guest house served before the government decided they get linens from bin laden.
posted by clavdivs at 5:20 PM on October 13, 2010


There once was a girl named [REDACTED],
Whose body was very [REDACTED].
She said "I'd [REDACTED],
"But would rather [REDACTED],
"[REDACTED] [REDACTED], [REDACTED]."
posted by TheWhiteSkull at 5:27 PM on October 13, 2010 [35 favorites]


as usual this sort of expose offers a view of a select tree rather than the forest, which in this case is the fact that there seems to be a consensus that the president can order the indefinite imprisonment of anyone he likes (except maybe a citizen, those he can assassinate.) now, you can watch the busy little legal-bureaucratic bees manufacturing the legal struts to support that consensus.

meanwhile, traditional property rights don't seem to apply if a big bank wants to foreclose on a house...

so much for the anglo-american system of law...
posted by ennui.bz at 5:29 PM on October 13, 2010 [5 favorites]


as usual this sort of expose offers a view of a select tree rather than the forest, which in this case is the fact that there seems to be a consensus that the president can order the indefinite imprisonment of anyone he likes (except maybe a citizen, those he can assassinate.) now, you can watch the busy little legal-bureaucratic bees manufacturing the legal struts to support that consensus.

The story I'm reading says that the courts concluded the person who was imprisoned was actually unlawfully detained and ordered his release. Can you explain how this supports the narrative you just spun?
posted by namespan at 5:36 PM on October 13, 2010


Let me just get this clear before we continue: you are in no uncertain terms contending that one purpose of the re-written report is to conceal the fact that torture took place and that some of the evidence against Uthman was obtained by torture.

From the first link: (you did read the first link?)

Kennedy's first opinion reveals that some of the government's evidence [against Uthman] came from a detainee who committed suicide at Guantánamo three years ago after months of hunger strikes. In the second opinion, the detainee's name is concealed, making it impossible for the public to know he is dead.

Maybe he waged hunger strikes for months before killing himself because he was disappointed in love.

It is unclear precisely what restrictions or classification requests guided Kennedy's alterations. Neither the judge nor the Justice Department would say. ...

"This censorship has nothing to do with protecting 'national security' and everything to do with covering up government mistakes and malfeasance," said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation.

posted by Joe Beese at 5:37 PM on October 13, 2010


"But that concern then inspired him to participate in the creation of a parallel universe that fools everyone except a small circle of judges. We don't allow the justice system to create false impressions,"
posted by clavdivs at 5:46 PM on October 13, 2010


sounds like a patrick mcgoohan script
posted by clavdivs at 5:49 PM on October 13, 2010 [3 favorites]


Jesus fucking Christ. "Not feasible for prosecution"? Is that a fancy way of saying they can't be proven guilty? If that's the case, on what basis have they been deemed "too dangerous to release"?

More likely "if we prosecuted them we'd have to admit we tortured them". Or "a bunch of the evidence we'd use to prosecute them came out under torture".
posted by asterix at 5:50 PM on October 13, 2010 [1 favorite]


Wow. And here all this time I've been worrying about the rise of the Tea Party in Canada.

Naw, those guys broke up in 2005.
posted by Sys Rq at 5:53 PM on October 13, 2010 [4 favorites]


From the first link: (you did read the first link?)

I don't think you should worry much about what I've read. Though the answer is yes. While we're on the topic, did you read this? It's linked from the first article. It's my understanding that this is the re-written opinion. If so, I'm particularly interested in what you think of pages 5-9.
posted by namespan at 6:03 PM on October 13, 2010 [2 favorites]


"too dangerous to release" == "They were innocent when they got captured, but we've treated them so badly that once released they will run straight to the nearest al Qaeda cell and join the war against us."
posted by ymgve at 6:11 PM on October 13, 2010 [3 favorites]


oh my
posted by clavdivs at 6:11 PM on October 13, 2010


So, this didn't happen to change the outcome. What's the supposedly nefarious point? Is there something particularly embarrassing in there?
Pretty straight up from the FPP here.

But the big problem has been stated, broadly – the second draft of the material creates a mistaken impression of the proceedings despite whether the security issues were valid or not.
And you don’t really want to have that kind of systemic dissembling in any system.

That the Obama Department of Justice is forging judicial records to conceal the fact that the men they want to indefinitely detain without trial are being held on unreliable evidence obtained by torture.
But that's not what happened here. And that line of reasoning further politicizes an otherwise straightforward analysis of a very serious systemic flaw.
Let's not allow anger to lead us into taking an irrational perspective on something that is an integral problem in the relationship between political agenda/foreign policy and how our justice system works and/or should work)
The Justice Department prosecutors don’t classify national security information. I suspect Obama doesn’t personally sit in an office overlooking this stuff himself either.

It’s exactly the case that it is para-political b.s. that exploits the chaos between agencies (occasionally taken advantage of as a loophole by various administrations but completely blown open by the Bush administration) that, as stated in the first piece with “inconsistencies in the classification process” leads to this kind of oppression.
You saw it in the Soviet Union with everyone in the rank and file trying to appease some nebulous concept of security.

Secrecy is antithetical to democracy (or republicanism, whatever). But it’s where the country, systemically, is listing.
You have intelligence folks interfering in the justice system in a number of ways and the people not playing ‘cover our ass’ are trying to brass their way through as though holding someone but not prosecuting them is a valid position.

That’s why you get this “too dangerous but not prosecutable” bullshit. And everyone knows it's bullshit and why it's been a lasting trend over multiple administrations (Clinton had some of this going on as well).

Not because it’s policy, but because it’s an ABSENCE of policy. They don’t know what to do exactly because they’re thinking politically, not legally. Certainly they’re not concerned with legitimacy.

Further polarizing the issue as a political one is adding fuel to the already political fire.
It’s not a political issue. Or shouldn't be - whether to detain someone without trial or not.
It’s about our system of justice and core principles, which are being subverted.
And the insubordination of elements of our intelligence community and the absolute lack of accountability of our leadership.

I absolutely blame Obama for not recognizing, and upholding, what is obviously about the integrity of our system and meandering around like an idiot on this issue. But I only wish it were as simple as him getting his shit together.

There doesn’t exist the political will to deal with the appalling systemic problems this kind of situation lays plain.
That is scarier to me than if Obama was secretly plotting world domination and jerking off over people being held captive and tortured.
Evil, at least, you can fight.
Impotent, fearful and willfully ignorant? Man, you have to practically scrap the entire apparatus.
I routinely vote third party (Green in Illinois) but even if there was a political sea change and no democrats or republicans remained in office, there’s not much you can do if your bureaucrats are fucking up by rote.

The failure to uphold habeus corpus is scary because it is so damned arbitrary. It looks like our government doesn't know what the hell they're doing and aren't willing to uphold a perfectly reasonable and (as said above) extremely long lived and durable principle and are fine with this "whargbl uh, dangerous guy, can't leddim go or prosecute em" grade school excuse they're operating under.
What stymies me is how anyone can argue in favor of it no matter how extreme their political position. Because it's such an assault on the basic mechanisms of a uniform system of justice no matter who's in office or how wonderful or vicious they are.
posted by Smedleyman at 6:13 PM on October 13, 2010 [28 favorites]


The story I'm reading says that the courts concluded the person who was imprisoned was actually unlawfully detained and ordered his release. Can you explain how this supports the narrative you just spun?

That's exactly my point: have any of these court cases changed the political consensus that the president can declare anyone an "enemy combatant" and subject them to "indefinite detention."

There is no reasonable precedent in U.S. law for declaring a person not on a battlefield and not engaged in violent acts (i.e. sabotage) to be an "enemy combatant," yet this has been held to be reasonable in public opinion even under a change in the political party of presidency. Obama has appealed this decision, had the judicial opinion redacted so that the case seems reasonable in the court of public opinion and seems content to continue the military kangaroo courts for some, arbitrary release for others, and for a select few "indefinite detention." None of these individual court cases seem to have changed the policy at all, if for no other reason than the legal strategy is being wholly dictated by the political strategy. The courts cut down trees but the forest continues to grow.
posted by ennui.bz at 6:15 PM on October 13, 2010 [1 favorite]


Maybe someone should compare the two revisions side by side, to see what the actual changes were.
posted by delmoi at 6:20 PM on October 13, 2010


Two articles on a similar case from the NY Law Journal - may be paywalled for some people, but searching on the headline can turn up reprints.

Jesus fucking Christ. "Not feasible for prosecution"? Is that a fancy way of saying they can't be proven guilty? If that's the case, on what basis have they been deemed "too dangerous to release"? Why were they rounded up in the first place?

Because it's war, of a kind we're not really used to. If this was a traditional shooting war of Country A vs Country B, you'd expect each side to capture some prisoners of war and hold them behind the lines somewhere. Ideally everyone would adhere to the Geneva convention, in practice a lot rides on the eventual outcome more than how and how much it was infringed upon - the good guys are not always good. At the end a treaty of surrender is signed by one side, there's a prisoner exchange, maybe some military trials or maybe not, and rebuilding starts although some wounds never quite heal.

We went to Afghanistan in the first place because we felt pretty sure that bin Laden & co. were responsible for the September 11 attacks, and the Taliban government that was hosting him were intransigent to the point of being self-destructive. They were less of a real government than a demolition squad in search of new enemies; hence nonsensical 'policies' like blowing up giant statues of Buddha. When we invaded and booted them out there were probably private sighs of relief, since fighting foreign invaders on general principle makes far more sense in their cultural context than building infrastructure or abstractions like an 'economy.'

So, we went in, blew up a bunch of things and people, and set up the basic machinery of government - which in this case, is about as modern as a waterwheel because there's so little infrastructure there. And we took a bunch of prisoners: either because we caught them with their pants weapons down and had no immediate reason to shoot them, or because we thought they could tell us something useful. The primary reason we still have them in custody is because we have not found anyone who can accept our surrender, and we have no clear idea of how to conclude matters without an awkward loss of face (the kind that encourages nutjobs to take another crack at us by attacking a bunch of defenseless civilians).

It was supposed to be a punitive expedition where we made it abundantly clear how we felt about getting attacked, and it was supposed to conclude with somebody bringing George W. Bush the head of bin Laden. If we had caught up with him I think that might have literally happened: barbaric as it is, such a demonstration would have made its point to every would-be jihadi, using unmistakably clear cultural referents signifying our will and ability to beat them at their own game. We are not, after all, dealing with enemies who pride themselves on being more modern minded than we are, but a dysfunctional fringe whose chosen cultural high point lies several centuries in the past.

We (as in Western civilization rather than just the USA) are horrified by fanatical Islamists because they do things straight out of the history books like cutting people's heads off or stoning them to death, what the fuck. If France extradited somebody from the UK and they died in prison for political reasons, well that would be bad; but if they dusted off the guillotine or burned the person at the stake, our first reaction would be to question our sanity. We would be equally startled if French visitors to Japan were assassinated with arrows or Japanese tourists visiting the UK found themselves accused of witchcraft and tied up to a ducking stool to be drowned in the nearest public pond. On TV. It's the collision between brutal historical realities romanticized by time and realtime global video streaming that is so unsettling.

(One might fairly point out that modern warfare has killed more people in more horrible ways than all the conquerors of the past put together, so our technological sophistication is nothing to be proud of. This is true, but so is the fact that we employ reflection and refinement to both our technology and our actions such that the idea of minimizing and mitigating harm is accepted as basic common sense, even if we don't always live up to our standards.)

Anyway, here we are fighting this bunch of nutbags who are equally at home attacking us with guns, bombs, planes, or carving knives, and whose stated social and religious viewpoint seems to revolve around conquering everyone and re-establishing the Moorish empire. We've defeated the direct military threat with ease, but only in the sense that you might say you've successfully destroyed a nest of hornets with a baseball bat. The figurehead of the organization, bin Laden, has eluded our capture and so we are unable to definitively demonstrate our victory and go home. If we just leave, the likely outcome is being followed by a cloud of hornets, and perhaps ending up with multiple nests to contend with. If we stay - well, that's our current problem. We have a bunch of people who look like Imperial Stormtroopers in slightly ridiculous uniforms, opposed by some plucky underdog rebel types who are too badass to even wear helmets and don't particularly care about getting shot. Although it might seem attractive to take the ego hit and just leave during the night, the awkward fact is that the plucky underdog rebel types also think beheading and stoning are reasonable things to do and have an extensive track record of terrorizing their own people because they can. Hence the current half-assed strategy of accepting Hamid Karzai as the sort of despot we can put up with and hoping he works out some sort of stability that will allow them to modernize at their own pace without renting out bits of the country to act as a launchpad for terrorism. Sucks.

Equally, what do we do with the prisoners? I honestly don't know. I'm most certainly not in favor of torturing them as Bush's administration did - as well as being grossly immoral and strategically idiotic, I doubt we learned anything even remotely useful. Any time we're watching a movie or reading a book where the hero is tortured, chances are he either deceives his interrogator or shows off his fundamental badassery with some kind of 'fuck you' remark. Why anyone in the Bush administration expected this to work any differently with a bunch of people obsessed with the martial exploits of a mighty warrior-prophet is beyond me. Had I been consulted I've have been ordering bulk supplies of porn and happy pills, because the one thing these guys were not familiar with was just letting it all hang out; ~1000 years ago Hasan i Sabah is supposed to have realized the key to loyalty was to give his recruits a taste of the heavenly reward up front. If we had staged a big flash and bag and knocked all the prisoners out, and had them come round to find themselves in the kind of sensual paradise that exceeded their wildest imaginings, I think most of them would have been delighted to explain where they had last seen bin Laden to ensure that he didn't miss out on a minute more of this awesome afterparty. You may think I'm being facetious, but view is that the one thing fanatics of any stripe are prepared for is actually getting what they're after: to the degree that they're hopelessly fixated on conflict, they have to uncritically idealize the just reward to correspondingly grandiose proportions.

Back in reality, a half-way effective alternative to deal with the prisoners would have been to adopt the jihadi's medieval style, chop their hands off, and release them. Of course we don't have the stomach for that and I'm glad, because I don't want to normalize such behavior. I mention it because it's the kind of thing their culture does with criminals, and would be the most effective demonstration of how we view them. They don't get the glory of martyrdom, or become the focus of imaginary badassery in the minds of future jihadis; they can never hold a weapon again and will be lucky to manage basic bodily functions, and it's a bit difficult to stir up righteous anger or even pity when you are the physical epitome of a criminal who's too pathetic to be worth executing. More likely you'll end up begging in a marketplace and serve as a negative example to the over-imaginative who are extremists' preferred recruiting fodder.

Lining them up against a wall and shooting is out, because that's a war crime and they get instant martyr status. Releasing them is problematic because they're unlikely to quietly retire. even if they never pick up anything more dangerous than a bread roll for the rest of their lives, they'll still have the aura of badassery - just as McCain has made a political career out of having been a prisoner of the Vietnamese on the simple grounds that he went through a lot of Bad Shit and lived to tell the tale.

I am not being facetious with all these references to badassery, but trying to point out the very basic psychological dynamics here. If you have ever been into an action, adventure, or crime movie even once in your life, then you can appreciate the idea of something being dangerous and exciting at the same time. Our own popular culture is dominated by stories of hopelessly outmatched space rebels, lice-ridden pirates, and misfits who dress up in costume to fight crime.That's sort of childish, but we also make a cultural practise of stupefying ourselves with alcohol whenever we want to relax. To a strict Islamist with a chip on his shoulder, western culture must look hopelessly infantile, abounding as it does with well-educated adults who collect plastic toys and moan about the difficulties of economic superiority. To Osama bin Laden, the tea party probably looks like a cultural renaissance.

So why did we round them up, and why can't we put them on trial, finally?

As I said at the outset, because it was a war. We didn't dust for fingerprints, run down an ID, pick up a warrant and then send the guys from Law and Order to feel their collars. Some soldiers came around a rocky outcrop, there was an exchange of gunfire, various people (mostly theirs) ended up badly wounded or dead, and we grabbed one guy here, one guy there because they found themselves out of ammo and cut off from any escape route. It's not police work because we weren't there to police anything, we were there to kick ass an take names - with a fair degree of justification, and most other countries' approval or participation, especially those who had also experienced bloody terrorist attacks. Releasing these 48 new guys and leaving them to their own devices is only going to create 48 new headaches and 48 new intelligence project teams, while causing at least 30% of our own population to lose sleep and foam at the mouth even if we deport all 48 guys to Antarctica to live with the penguins, as well as about 10% that will wring their hands over our inhumanity in giving them only two changes of thermal underwear and ecologically unsustainable igloo heaters.

Trying them in anything resembling a regular court is going to be a complete shambles because our 'evidence' basically amounts to "So-and-so and these photos prove you hung out with these enemies of ours, and we are pretty sure that was you shooting at us from that ridge before we overran your position and found you running out of a cave, also you hurt our feelings when you were calling us infidel dogs. Admittedly there was some other bad stuff involving lapses in vigilance and ethical behavior that we're too embarrassed to discuss publicly." Secret trials won't satisfy anyone either, and will only result in a new crop of conspiracy theories from the left and right wing fringes, whoever you consider those to be. The one thing you can be sure about is that all conspiracy theories will include the phrases 'wake up sheeple,' and 'we the people' and talk of taking the country back to some unspecified previous state of moral clarity.

As I said, I really don't know what to do, and don't think the administration does either. The obvious attractive solutions are all problematic in their own way. I agree that some of these people are by now harmless, some of them were no more than dupes, a few of them are probably entirely innocent. It's a travesty, born out of our failure to bring the war in Afghanistan to a swift and definite conclusion with or without bin Laden. But I see no single course of action with these guys that lets us say 'done, now that's over' and stop worrying about it. If you can think of one that overcomes these difficulties, please share it because the USA needs a better imagination than I have. If your response is to dispute that a significant problem even exists with following this or that course of action, all I can say is that magical thinking is a big part of how we got into this mess in the first place.
posted by anigbrowl at 6:23 PM on October 13, 2010 [30 favorites]


Because it's war, of a kind we're not really used to.

It is crime. Not a war. War is between two nation states. This is an overly publicized group of thugs. To treat them otherwise is to give an even worse sort of criminals an excuse to abuse the power which they have via plutocracy.
posted by banal evil at 6:29 PM on October 13, 2010 [7 favorites]


I'm particularly interested in what you think of pages 5-9.

You mean this part?

The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured. ...

... while held in Jordan, Hajj "was regularly beatened and threatened with electrocution and molestation," and he eventually "manufactured facts" and confessed to his interrogators' allegations "in order to make the torture stop." ...

... while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him.  ... eventually "[h]e made up his mind to say 'Yes' to anything the interrogators said to avoid further torture."


What I think is that it's very strange that you read this and then asked me:

... you are in no uncertain terms contending...  that some of the evidence against Uthman was obtained by torture

I am not "contending" anything. The judicial finding is was that the men's statements should not be relied on to justify Uthman's imprisonment because they were made after the men had been recently tortured and raped.

If you have some kind of point to make, I invite you to make it in lieu of further quizzing.
posted by Joe Beese at 6:37 PM on October 13, 2010 [6 favorites]


In the military tribunals system the people are represented by 3 equally important groups. The soldiers who detain terrorists, the JAGs who prosecute them and the CIA contractors who hangs them by their nut sacks in an inverted position while pouring water down their throat simulating drowning. These are [redacted]
posted by humanfont at 6:39 PM on October 13, 2010 [4 favorites]


At those times when transparency is hardest to justify, it is most sorely needed.
posted by Xoebe at 6:40 PM on October 13, 2010 [1 favorite]


The obvious attractive solutions are all problematic in their own way.

But one has the extra attraction of not constituting human rights abuse.
posted by Joe Beese at 6:49 PM on October 13, 2010


What's up with all the references to "Usama bin Laden"? I've never seen the name spelled that way.
posted by BungaDunga at 6:59 PM on October 13, 2010


Some soldiers came around a rocky outcrop, there was an exchange of gunfire, various people (mostly theirs) ended up badly wounded or dead, and we grabbed one guy here, one guy there because they found themselves out of ammo and cut off from any escape route. It's not police work because we weren't there to police anything, we were there to kick ass an take names - with a fair degree of justification, and most other countries' approval or participation, especially those who had also experienced bloody terrorist attacks.

Actually, most of these prisoners were given to us by other governments, or sold to us by militias and warlords.
posted by 445supermag at 6:59 PM on October 13, 2010 [4 favorites]




What's up with all the references to "Usama bin Laden"? I've never seen the name spelled that way.


Uhhh...
posted by furiousxgeorge at 7:01 PM on October 13, 2010


I absolutely blame Obama for not recognizing, and upholding, what is obviously about the integrity of our system and meandering around like an idiot on this issue. But I only wish it were as simple as him getting his shit together. There doesn’t exist the political will to deal with the appalling systemic problems this kind of situation lays plain.

I think he recognizes, and agree that there's a lack of political will. But three things prevent me from getting too righteously indignant: the fact that about 20% of the country apparently went batshitinsane within weeks of Sarah Palin's nomination for Vice President; the fact that every single attempt to move these guys to the continental US or get an actual trial going has been met with an outbreak of incontinence followed by furious refusal; and the fact that past problems like this were usually solved by the most expedient method followed by a long official silence.

These are political problems, not legal ones, and a large part of our polity is terribly frightened by these people we've ended up fighting with (fears that are not wholly unfounded). the internet is itself unprecedented as a political amplifier and tool of discovery. although the government is clinging to a probably-outdated policy of secrecy, it's a fact that our institutions have never been open to such pervasive and intense scrutiny as is possible today, and 20th century procedures are being outpaced by technology.

I mean, here's a story about some classified secret type stuff that accidentally bypassed the censors, and boom, you can just download your own copy if you feel like it. Or not, you'll still be able to search for it a few months from now if you don't have time today. And this, we consider entirely normal. You and I probably enjoy more information-gathering and computing power today, for free, than most people in the CIA did 20 years ago. WTF.
posted by anigbrowl at 7:08 PM on October 13, 2010 [3 favorites]


1) Surely this...

2) I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
And I'll get on my knees and pray
We don't get fooled again
posted by ZenMasterThis at 7:19 PM on October 13, 2010 [1 favorite]


I was really annoyed at a recent NPR story about this kind of thing where the reporter was asked specifically, "So what happens if one of these detainees is found not guilty?"

And for some fucking idiotic reason, the answer was not "They should be released," but some wishy-washy non-committal bullshit.
posted by odinsdream at 7:22 PM on October 13, 2010 [1 favorite]


So, we went in, blew up a bunch of things and people, and set up the basic machinery of government - which in this case, is about as modern as a waterwheel because there's so little infrastructure there. And we took a bunch of prisoners: either because we caught them with their pants weapons down and had no immediate reason to shoot them, or because we thought they could tell us something useful. The primary reason we still have them in custody is because we have not found anyone who can accept our surrender, and we have no clear idea of how to conclude matters without an awkward loss of face (the kind that encourages nutjobs to take another crack at us by attacking a bunch of defenseless civilians).
OH NO, NOT A SERIOUS LOSS OF FACE?

Also, how can anyone believe that "a serious loss of face" would result in more attacks, but that holding prisoners for decades without any evidence of guilt and bombing more people would somehow not make them not want to.
We (as in Western civilization rather than just the USA) are horrified by fanatical Islamists because they do things straight out of the history books like cutting people's heads off or stoning them to death, what the fuck.
On the other hand, sexually abusing prisoners, and beating them to death never goes out of style! Hell, throwing them in a box with insects is downright innovative! And what could be more modern then killing people with hellfire missile armed robots!

What a bunch of bullshit. How could anyone believe that crap?
the fact that every single attempt to move these guys to the continental US or get an actual trial going has been met with an outbreak of incontinence followed by furious refusal; and the fact that past problems like this were usually solved by the most expedient method followed by a long official silence.
What the fuck does that even mean? Only reason these people can't be brought to the U.S. is because Obama is more interested in not hurting anyone's feelings then any sort of justice. If people refuse to transfer them, fire them, and replace them with people who follow orders. If there's no reliable evidence that can be used to convict someone, release them. Why should potentially innocent people be kept in prison for life on the basis of tortured evidence?
posted by delmoi at 7:37 PM on October 13, 2010 [12 favorites]


I was really annoyed at a recent NPR story about this kind of thing where the reporter was asked specifically, "So what happens if one of these detainees is found not guilty?" And for some fucking idiotic reason, the answer was not "They should be released," but some wishy-washy non-committal bullshit.

Greenwald points out that Obama's plan - civilian trial, military commission, or no trial at all, depending on which will insure no acquittal - is an obscene parody of justice.
posted by Joe Beese at 7:40 PM on October 13, 2010


odinsdream: Greenwald has been doing good work publicizing the fact that the Obama administration has asserted "presidential post-acquittal detention power" in those cases.
posted by Grimgrin at 7:45 PM on October 13, 2010 [1 favorite]


As I said at the outset, because it was a war. We didn't dust for fingerprints, run down an ID, pick up a warrant and then send the guys from Law and Order to feel their collars. Some soldiers came around a rocky outcrop, there was an exchange of gunfire, various people (mostly theirs) ended up badly wounded or dead, and we grabbed one guy here, one guy there because they found themselves out of ammo and cut off from any escape route.

What utter rotten rubbish. It has been well documented that we got a bunch of them from warlords and other sources which sold them to us for a reward... often these folks had nothing to do with the Taliban or AQ, but were inconvenient for some reason, perhaps they owned a bit of land the warlord coveted, or heck, just to score some cash.

I would like to point out yet again, how it transpired that over 90% of Abu Ghraib prisoners were utterly innocent of all charges. I have zero faith that the stats are much better at Gitmo.

This is an utterly indefensible travesty. The solution, far from being very complicated, is extremely obvious - put them on trial, or release them immediately. Then demote and put on trial the jokers who are so completely incompetent at their jobs that they not only break laws but are a threat to this nation - maybe they can join Lynndie England.
posted by VikingSword at 7:55 PM on October 13, 2010 [16 favorites]


From Grimgrin's link:

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal:   to ensure that anyone the President wants to keep imprisoned will remain in prison.  They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates.   This is how I described it when Obama first unveiled his proposal of preventive detention:
If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).
After yesterday, we have to add an even more extreme prong to this policy:  if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree.


Cue the expressions of "disappointment" in Obama's civil rights record.
posted by Joe Beese at 8:04 PM on October 13, 2010 [3 favorites]


"among 48 detainees the Obama administration has deemed too dangerous to release but 'not feasible for prosecution.'"

Jesus fucking Christ. "Not feasible for prosecution"? Is that a fancy way of saying they can't be proven guilty? If that's the case, on what basis have they been deemed "too dangerous to release"? Why were they rounded up in the first place?


Think: the OJ Simpson case. Criminal trial vs. civil trial outcomes.

To try and answer you questions. Not wanting a discussion on the right or wrong of either case.
posted by uncanny hengeman at 8:29 PM on October 13, 2010


If you have some kind of point to make, I invite you to make it in lieu of further quizzing.

OK, though I'm not sure why you haven't put it together yet.

I am not "contending" anything.

Oh, yes you are. Here you say:

the Obama Department of Justice is forging judicial records to conceal the fact that the men they want to indefinitely detain without trial are being held on unreliable evidence obtained by torture.

And yet, if you read the rewritten opinion, as you apparently now realize, inside you'll find:

that the men's statements should not be relied on to justify Uthman's imprisonment because they were made after the men had been recently tortured and raped.

Do you realize these things don't go together?

If the Department of Justice is trying to rewrite the opinion conceal the fact that Uthman was being held on unreliable evidence obtained by torture, they did a spectacularly bad job at their forgery, given that these exact facts and their relationship to the law are treated at length in pages 5-9.

There are two other possibilities I can think of, though: (1) what we're reading here isn't actually the rewritten opinion (2) your earlier comment is wrong and they weren't trying to conceal that at all.
posted by namespan at 8:46 PM on October 13, 2010


If the Department of Justice is trying to rewrite the opinion conceal the fact that Uthman was being held on unreliable evidence obtained by torture, they did a spectacularly bad job at their forgery, given that these exact facts and their relationship to the law are treated at length in pages 5-9.

Key Deletions in the Uthman Trial Court Opinions

What Was Deleted

Descriptions of intelligence documents reviewed in the Uthman case by the Court

Why It Matters

Described as "crucial pieces of evidence," each intelligence document's definition includes the type of information found in that document as well as which department or government agency offered it.


Said documents including Summary Interrogation Reports (SIRs) - three of which are "interrogations conducted under the auspices of the Department of Defense".

In case you didn't notice, the government "doing a spectacularly bad job" is why they had to censor the original ruling in the first place.
posted by Joe Beese at 9:45 PM on October 13, 2010


But one [solution] has the extra attraction of not constituting human rights abuse.

More than one; detention for the foreseeable future (sans torture) isn't considered an egregious human rights violation. Some people, we prefer to keep locked up and sometimes with very good reason. It's certainly a major cancellation of a person's civil rights, but suggesting that Afghanistan was a regular civil society before or after we started fighting there is a stretch; even under the circumstances claimed by Uthman, I don't find it surprising that he was taken into custody as prisoner-of-war.

It doesn't help that Al Qaeda isn't a state actor or any formally organized entity. It doesn't seem as if anyone in the Taliban government of the time or supposed to have been part of AQ went in for things like uniforms or other military conventions, putting themselves outside the normal scope of international law to begin with. Now, if you have such a person in custody, and strongly suspect (even if you can't fully prove) that they have been involved in paramilitary attacks against you, how do you balance the satisfaction of a clean conscience from not keeping someone prisoner with your responsibility to defend your own people from external attack?

I don't think any of the torture was justified or that people's cases should be on hold indefinitely; but detaining someone because you reasonably believe they will take up arms against you if released is not inherently unjust.

Actually, most of these prisoners were given to us by other governments, or sold to us by militias and warlords.

Fair enough, but let's deal with the facts of this case, rather than generalizing about others. I've freely acknowledged above that some of them are false positives, some completely innocent, and that this is a moral tragedy. So is the fact that any of them were tortured, something I consider wrong on every conceivable level. Indeed, we have released some people and resettled them elsewhere. The administration has not been completely indifferent to this issue as some suggest. In any case, it does not follow that because some were (or are) innocent, all must be innocent. So, let's look at the facts of Uthman's case.

Consider the following from the original opinion:
Conclusion In sum, the Court gives credence to evidence that Uthman (1) studied at a school at which other men were recruited to fight for Al Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by Al Qaeda recruits; (4) was seen at two Al Qaeda guesthouses in Afghanistan; and (5) was with Al Qaeda members in the vicinity ofTora Bora after the battle that occurred there. Even taken together, these facts do not convince the Court by a preponderance of the evidence that Uthman received and executed orders from Al Qaeda.

Agreed, and agreed further with the later conclusion that there is no strong evidence that he was bin Laden's bodyguard, the evidence provided is insufficient to justify those specific charges - although it must be remembered that only the barest rudiments of law or administration existed under Taliban rule, making the standard of evidence we are used to here practically impossible to satisfy.

So while we can't prove he was bin Laden's bodyguard, he's not some random sightseer that got separated from his tour group, is he? The court finds credible the allegations that this guy was recruited, bankrolled by, traveled to, resided with, and stuck close to Al Qaeda people. In between his arrival in Afghanistan and his capture by us, the September 11 attacks took place, the US and a bunch of other countries ascribed responsibility to Al Qaeda, issued various ultimata to the Taliban that were rejected, and then invaded invaded, bombing likely Al Qaeda targets heavily. So if a person had no truck with Al Qaeda's ideology or methods, and no desire to become a military target, the sensible thing would involve staying as far away from any jihadi types as humanly possible/

Yet when he's taken into custody, he's in the company of Al Qaeda members who know him personally, despite the severe personal risk that involves. What do you conclude from this pattern of behavior?
posted by anigbrowl at 9:57 PM on October 13, 2010 [1 favorite]


What do you conclude from this pattern of behavior?

I conclude that there is not a preponderance of evidence to suggest that Uthman received and executed orders from al Qaeda.
posted by Joe Beese at 10:11 PM on October 13, 2010 [1 favorite]


If these people were actually caught on a battlefield, in an actual war, shooting actual guns, I might have some tiny sympathy for the positions of the US govt, despite the dubious ethicality and legality of the wars now being waged. (Although: geneva conventions: what?)

To reiterate the point made earlier:


Actually, most of these prisoners were given to us by other governments, or sold to us by militias and warlords.


again


Actually, most of these prisoners were given to us by other governments, or sold to us by militias and warlords.

posted by lalochezia at 10:17 PM on October 13, 2010 [3 favorites]


I also conclude that if the state can't meet the standard of evidence, that's the state's own fucking problem.
posted by Joe Beese at 10:17 PM on October 13, 2010


Karma is a bitch. The financial collapse is the flipside to war crimes and unjust warring.
posted by five fresh fish at 10:24 PM on October 13, 2010


As I said at the outset, because it was a war. We didn't dust for fingerprints, run down an ID, pick up a warrant and then send the guys from Law and Order to feel their collars. Some soldiers came around a rocky outcrop, there was an exchange of gunfire, various people (mostly theirs) ended up badly wounded or dead, and we grabbed one guy here, one guy there because they found themselves out of ammo and cut off from any escape route.
Also, if you'd spent any amount of time thinking about this, you would see that it would be easy to get a conviction, when police get into a shootout, they don't have any trouble getting convictions, because they can testify themselves. Getting convictions against people like this in court would be easy.
posted by delmoi at 10:41 PM on October 13, 2010


Think: the OJ Simpson case. Criminal trial vs. civil trial outcomes.

To try and answer you questions. Not wanting a discussion on the right or wrong of either case.
What? You can't sue someone into jail. What the fuck does that have to do with locking people up?
More than one; detention for the foreseeable future (sans torture) isn't considered an egregious human rights violation.
Are you literally insane?
posted by delmoi at 10:47 PM on October 13, 2010 [8 favorites]


What? You can't sue someone into jail

Well...

'If you have not been sued on a debt, you do not need to worry about going to jail on that debt. Of course, if you have been sued but don’t know it for some reason, you may still be in danger. Ignoring a lawsuit is how you risk jail.'

that is weird.
posted by clavdivs at 11:29 PM on October 13, 2010 [1 favorite]


The court finds credible the allegations that this guy was recruited, bankrolled by, traveled to, resided with, and stuck close to Al Qaeda people.

Worth noting. It is also worth noting that some of the deletions actually contain statements more or less to this effect, both in terms of evaluating his associations and his location when he was taken into custody by the Pakistanis.

Key Deletions in the Uthman Trial Court Opinions

I've read the key deletions list. It doesn't make or support the assertion you made.

It also seems to me that a number of the assertions it does make aren't particularly well supported by a review of both the before and after opinions, but let's focus on one thing at a time here.

In case you didn't notice, the government "doing a spectacularly bad job" is why they had to censor the original ruling in the first place.

Oh, that's it? Seriously? That's your response to being totally caught out? You're actually going to try and cling to the idea that the justice department really really was trying to write the torture all the way out of the opinion but they just bungled it so badly that it's almost 25% of the focus?

Dude. Come on. It's obvious: you really thought the after opinion was scrubbed of any torture references even though you hadn't read it, you spouted off, and you were wrong. Happens.
posted by namespan at 11:33 PM on October 13, 2010 [5 favorites]


Also, how can anyone believe that "a serious loss of face" would result in more attacks, but that holding prisoners for decades without any evidence of guilt and bombing more people would somehow not make them not want to.

By not assuming that our society's moral and political calculus is universal or objectively true.

What you mention - detention absent proper procedure - is the sort of thing we get deeply upset about, because our societies in 'the west' are mostly founded upon the idea of constitutional government with fairly deep historical roots, and philosophical support for the rule of law as the high-water mark of governance originates from the same philosophical wellspring as the roots of our languages, our music, our basic mathematics, and our concepts of democracy and a republic - that is, from ancient Greece via the Roman empire.

These concepts are not considered equally important in other cultures, or even fully accepted within our own. There's a countervailing trend of religious monotheism from Judaism via Christianity and into Islam, obviously. Now, when you consider how conservative Christians (particularly Calvinist thinkers) influence American politics, and how the more ideological conservatives will often short-circuit rational discussion by appeal to the Bible if invoking the Constitution isn't going very well, to the frustration of rationalists; and when you consider how Israeli politics often seems obtuse or outright irrational to external observers who are not used to treating Jewish orthodoxy as part of the intellectual furniture; is it rational to assume that Islamic socio-political dynamics and psychography are more or less the same as our own?

Of course I don't consider Islam to be a monolithic culture, it's far too big and diverse to be characterized with a few generalizations. But we can look at some specific cases and draw a few inferences from them. For example, more modern and rapidly developing countries like turkey and Indonesia are basically democratic. But there are a bunch of other Islamic countries that are more dynastic in style - Egypt, Saudi Arabia, Iraq during the Saddam era, Libya and so on. Iran, a theocracy, is sort of in-between, an intellectual dynasty more than a heritable one. The Islamic countries with strongly centralized rule broadly tend towards being more conservative and more militant. In Afghanistan, the geographic isolation, relative lack of technological and infrastructural development, and chaotic history allowed the Taliban to gain power and run almost the most limited state imaginable - little more than an ideology, a paramilitary combination of defense and ideological enforcement, public executions and...er...that's it. They didn't have much going on in the way of policy or administration, but they did share with Al Qaeda (and the institutional structure of Saudi Arabia) a commitment towards the extremely conservative flavor of Islam called Wahhabism, one feature of which is an incredibly possessive attitude towards women.

We can't talk about the rule of law and equal justice for all without acknowledging that the default situation for women in this part of the world is to be as completely concealed from direct view as possible, and it is considered entirely normal for parents who feel let down by their daughters to mutilate or just kill them - this isn't to suggest that such practices are exclusive to Islam, but they have persisted most strongly in conservative Islamic countries. Among the more tribal societies that populate the area from north-western Pakistan up into Afghanistan, intergenerational and internecine feuds take on epic proportions and 'defending family honor' has, until very recently been an acceptable justification for killing off whole branches of your own family: the social standing of the clan has depended upon a patriarch's ability to enforce discipline among its members and is thus viewed as far more important than the life of any individual family member.

When I talk about loss of face I don't mean the kind that subjects you to awkward interview questions or losing an election, but the kind which leads people to identify you as a soft target. In a purely military conflict this would be settled by shooting it out, but in a paramilitary asymmetrical warfare situation, strategic success is measured in civilian casualties above all else. Getting killed either while attacking your enemy or defending your own turf is a glorious end and ups your collective warrior cred - we do the same thing, but to a much lesser extent.

Rotting away in jail, though, is a pretty limp kind of martyrdom, and those who end up in that position are the ones that were not cunning enough to escape or bold enough to go out fighting. So they're angry about it on one level (especially across Islam as a broader society, which has a more humanistic and empathic tendency that the fanatical fringe), but for the extremists the prisoners represent a distinctly inglorious failure, unless of course they die fighting prison guards or something. Even if it were easily accessible geographically, I feel confident in saying there would never be an Al Qaeda prison rescue attack. Breaking out of prison is cool, even if you die in the attempt, but having to be rescued from prison is humiliating for everyone involved. Getting released is somewhere between the two, as far as I can tell. Long-term confinement is slightly less humiliating than my earlier example where offenders have their hands chopped off, which implies you're not even dangerous enough to be worth locking up.

In short, what bothers you and what bothers Islamic extremists are two very different things.

Only reason these people can't be brought to the U.S. is because Obama is more interested in not hurting anyone's feelings then any sort of justice. If people refuse to transfer them, fire them, and replace them with people who follow orders.

I'm talking about the public, not the military. Personally I'd rather see him tried in NY, but then I live all the way over in SF so that's easy for me to say. It's too frightening to too many people there on some level. The obstacles are on the ground as much as in DC.

If there's no reliable evidence that can be used to convict someone, release them. Why should potentially innocent people be kept in prison for life on the basis of tortured evidence?

They shouldn't be; I'm against torture in all circumstances. But what if you have other evidence, albeit circumstantial, which gives you a strong reason to believe the person in your custody is extremely dangerous? There's no simple answer to this, because while you want to uphold the rule of law by granting due process to everyone, no matter how heinous the charges against them, you also have other responsibilities, like defending the public or the US in general from attackers. That's why the Constitution has exceptions for 'times of war or public danger' and so on.

I'm not giving Obama a pass here; I put up the first link to this story yesterday. But the whole point of having an executive branch is the necessity of balancing conflicting imperatives, and the power we grant to enable that is checked and balanced by the judiciary, or the impeachment process in the most extreme cases. If such decisions were as simple as you suggest, governing would be easy, wouldn't it?
posted by anigbrowl at 12:55 AM on October 14, 2010 [1 favorite]


(More than one; detention for the foreseeable future (sans torture) isn't considered an egregious human rights violation.)
Are you literally insane?


No, although that's exactly the sort of thing that can cause someone to be locked up if they're violent, without much legal recourse. Someone who's sentenced to life without parole is in detention for the foreseeable future too. That's not a human rights violation.

Of course, it's quite different if you end up in that position without having had a fair trial, which was what the next paragraph was about. I know these posts are very verbose; you don't have to read them if you're not in the mood for an essay answer. But I don't see what yourOutrageFilter adds to the discussion.
posted by anigbrowl at 1:42 AM on October 14, 2010


Karma is a bitch. The financial collapse is the flipside to war crimes and unjust warring.

Yeah, except the people responsible for the decision-making are still billionaires. This is more rampant douchebaggery than karma.
posted by elizardbits at 4:31 AM on October 14, 2010 [1 favorite]


What? You can't sue someone into jail. What the fuck does that have to do with locking people up?

"Everyone" knew OJ was guilty, yet he got found not guilty and stayed out of jail. The civil case found otherwise due to different rules of guilt.

So when people angrily question the meaning of: among 48 detainees the Obama administration has deemed too dangerous to release but 'not feasible for prosecution' that's what I think might be a meaning. Or rather, the OJ case might be a good analogy of what could go wrong at a trial and what that odd statement is getting at.

"Everyone" knows he's guilty but the USA doesn't want to risk a trial because he might get found not guilty.

Excuse my sloppy legalese up top.
posted by uncanny hengeman at 4:55 AM on October 14, 2010


Oh, that's it? Seriously? That's your response to being totally caught out? You're actually going to try and cling to the idea that the justice department really really was trying to write the torture all the way out of the opinion but they just bungled it so badly that it's almost 25% of the focus?

Perhaps you were too eager at your perceived opportunity to "catch me out" to read my original sentence carefully.

Again:

That the Obama Department of Justice is forging judicial records to conceal the fact that the men they want to indefinitely detain without trial are being held on unreliable evidence obtained by torture.

A-ha! you shouted. They didn't conceal the torture at all! It's right there in pages 5-9! I have Beese where I want him now!

Only the sentence doesn't say they concealed the torture. It says they concealed the unreliability of their evidence. (Evidence which happens to have been obtained through torture.)

You will perhaps agree that the government's censoring serves to conceal the unreliability of their evidence?

Next time you want "catch me out" at something, why not just say my favorite band sucks?
posted by Joe Beese at 6:00 AM on October 14, 2010 [1 favorite]


But what if you have other evidence, albeit circumstantial, which gives you a strong reason to believe the person in your custody is extremely dangerous? There's no simple answer to this, because while you want to uphold the rule of law by granting due process to everyone, no matter how heinous the charges against them, you also have other responsibilities, like defending the public or the US in general from attackers. That's why the Constitution has exceptions for 'times of war or public danger' and so on.

Couple things here regarding the premises there, because your logic is fairly sound.
#1 I'm extremely dangerous. Appallingly so. I could immobilize a good sized police station single-handedly with little preparation. Give me enough time and I could seriously fuck up the city of Chicago in a number of ways.
I should then be held in custody in perpetuity?
No, because I have committed no crime. Ok, what if I'm just angry and I want some kind of political change? As I said, I could do some major damage if, say, I don't like whoever becomes the new mayor. Then I should be jailed forever and not charged? I don't think so. The potential for destruction does not equal an actual conspiracy or attempt to destroy.

So we're obviously allowing some bleed over here and conflating the two, perhaps because of fear. But conspiring to commit a crime is a crime. Being capable of it, no matter how heinous, is not. So we can't allow fear to give us an excuse to go looking for some kind of symbolic retribution or revenge on the people we're afraid of by harming/torturing/continuing to deprive of justice the people we DO have.
It's corrosive.


#2. Terrorism is a matter of criminal, not military, justice. In part because you can't fight terrorists with armed forces - tactically because of the asymmetry and the loss of efficiency in the use of military forces (which is pretty much what any guerrilla force would want and what terrorists aspire to - forcing you to be lucky all the time while they have only to be lucky once), and because of the potential for military law and leadership to overwhelm civilian law and leadership (obvious reasons why - and we have indeed seen some of this, and it's dangerous).

But mostly because you can't prosecute terrorists under (U.S.) military law without causing exactly the kind of havoc we've seen with our own civil liberties. Even the military tribunals set up by Roosevelt were goofy.
And from the other end, it hoses up foreign policy as well. Because you now lack the trust that comes with consistency.
No? Why aren't we taking more and more prisoners and holding them indefinitely, if this is such a swell way to do things?
Capturing and interrogating someone in the field is a tactical decision and is an accepted practice. Holding them long term gets a little more complex, but it can be done for a bit.
I go with Tom Parker (CT investigator from the UK) you can only actionable intelligence within about 48 hours and holding someone for 3 or 4 years is useless and ultimately counterproductive.
Strategically because you're taking time, material and staff to run prisons and talk to people who, even if they were in the know about everything that was going to happen in the next few days or even weeks, are completely out of the loop once anyone knows they're captured.

Legally because international law mandates detainees have access to independant courts that can determine issues like habeas corpus and status and whatever status they do have they're either governed by the Geneva Conventions (if, say, you grabbed them while they were shooting at you and your men) or by domestic law (if, say, you were involved in an intelligence op and there's a big wall map of the 32nd ward with signs saying "Blowz up teh Zoos" and guys standing around plotting something smelling of ANFO).

So either you prosecute terrorists under criminal law, or shoot them because they're shooting at you or to prevent them in an immediate situation from executing their plan, or yes, you let them go if there's no evidence to prosecute them with.

We can't allow any authority to detain people at will without charging them. Part of the reason it's going on here is because one element grabbed some guys as part of counterterrorism theater (some legit, but doesn't excuse it) and tried to get the domestic apparatus to play ball.
And the tools for that just don't exist. (In part because they shouldn't), so they're saying "well, we're not letting them go anyway." And that's terrible. 40 cakes terrible.

What's all the worse is - we've done it perfectly successfully in the past. We've prosecuted the people who tried to blow up the WTC the first time.
Other countries handle this problem - the Sauerland cell as an example.
We want to talk immediate threat dangerous - I've got a pretty well stocked firearm outfit but I'm not looking to stockpile hundreds of kiloliters of hydrogen peroxide in my basement.

There's no excuse not to have a justice system that's forced to bow to political expediency or be prostituted in order to somehow justify ass-headed foreign policy desires.

We wind up with self-destructive ad hoc law - at the very least.

There's a good scene in 'Conspiracy' where one of the Nazis who doesn't really have much problem with the humanitarian concerns of annihilating the Jews outlines the fundamental legal problems that occur when the law creates a void because of the secret. It messes up marriage, property inheritance, etc. One of the things he says: "To kill them casually without regard to the law martyrs them, which will be their victory."
Now, this is a hard core Nazi arguing a point of order in eradicating an ethnic group, he's not exactly a poster boy for human compassion but he's got a point.

The divide here, in the story about Wannsee is similar to the division we have over this issue. You have the straightforward pursuit of violence and desire for destruction of the enemy without regard to how it's done vs. the more process oriented side.
And there too the power side regards the process side as weak, without a stomach for killing, etc. And this is more or less how it is in the U.S.
So too you have the "you think you have dominion over me?" beef between the subordinates/allies of powerful political figures.

All lost in this is the reason we have a process in the first place is to uphold equality and human rights against naked power and authority.

It does not matter how dangerous someone may be, due process must be given to everyone regardless of the threat to life - in part because the threat to life is not immediate (they're in jail) but mostly because the greater threat is to the system itself which can result in far far greater a threat to many lives.
We've seen this innumerably in history. Democide has killed more people than war, terrorism, other forms of violent threat to a population.

There can be no safety for anyone as long as human rights are systemically deprived and secrecy is used to cover it up. Because there's nothing that says tomorrow it can't be you.
It's that simple.
posted by Smedleyman at 12:40 PM on October 14, 2010 [1 favorite]


There's no excuse not to have a justice system that's forced to bow to political expediency or be prostituted in order to somehow justify ass-headed foreign policy desires.

No excuse to have a justice system that bows/or is prostituted - obviously.
posted by Smedleyman at 12:42 PM on October 14, 2010


I conclude that there is not a preponderance of evidence to suggest that Uthman received and executed orders from al Qaeda.


I asked what you do conclude, not what you don't conclude. We agree about the legal inadequacy of the case they made: the government will either have to offer new, untainted evidence; modify the charges; grant him POW status; or release him. The judge's conclusion is that he was probably in Al Qaeda, but it's not clear that he was a bodyguard or even a combatant.

But I'm asking what you think of him based on the admissible evidence that was found to be credible. Suppose it's 2001, you have got custody of him, and you have credible untainted evidence of his being a member of Al Qaeda, although you can't finger him for anything more specific than that. Because you are a great guy, I know you will not torture him or consider other evidence obtained that way. But you still have the problem of what to do with this apparent Al Qaeda member you found a war zone - and while you're bound to respect his human rights, you're also bound to defend the United states.

Basically, how would you characterize his pattern of behavior, as opposed to the subsequent mishandling of his case? What should they have done, back when they had the opportunity to do it right?

You will perhaps agree that the government's censoring serves to conceal the unreliability of their evidence?


No, the government's censoring serves to conceal identifying information about intelligence assets. It does nothing at all to conceal the unreliability of their evidence, nor the cause of the unreliability - that it was obtained via torture.

Your claim here makes no sense. As has been pointed out to you, pages 5-9 of the final, censored version are mostly devoted to this very topic. They say, in brief, that the government's allegation of Uthman being one of bin Laden's personal bodyguards is unsupportable, because the only evidence presented to support the allegation is unreliable hearsay evidence from two people who probably gave it up under torture. It goes into considerable detail about what was done to them, and that it took place in a CIA-run prison in Kabul.

In fact, the judge's remarks about the unreliability and facts of information obtained via torture is substantially the same as in the original version. Most of the redactions for pages 5-9 were made to conceal the identity of (then) CITF Investigator Marin Larson by removing her name and gender-specific pronouns. In similar fashion succeeding pages redact the names of informants, mention of the Yemeni government (as the specific source of a document), and information that correlates document IDs with their contents.

These details of sources and file IDs are significant to intelligence analysts, but of only marginal significance to the main issue: that the US government tortured people; and that that was done by certain departments, at certain times, in certain places, and in certain ways; that it offered statements obtained via torture as evidence; and that such evidence is unreliable because of its provenance. All of that remains in the final opinion with minimal alteration. It makes the Bush administration and the CIA in particular look very bad for having carried out torture, and it makes the Obama administration look bad for trying to recycle the resulting evidence, which is legally tainted.

So no, the government's censoring does not serve to conceal the unreliability of their evidence. It sounds just as unreliable in the final redacted version as it did in the earlier draft, and for the same reasons.

There's other stuff that was censored, but which you completely overlooked: the details of where, when and how Uthman was captured, for example. He claimed he had fled to a village called Khost, and from there went to the Pakistani border and surrendered himself to the police there. I can sort of see the intelligence argument for redacting the specific date and place and the document IDs, but would have left in his general claim that he had not been at the battle, he had been somewhere else and just happened to run into Al Qaeda people he already knew while on his way out of the country. The judge didn't find this very persuasive and was more inclined to believe the government, but it would have provided a better context for his conclusions to leave it in.
posted by anigbrowl at 1:12 PM on October 14, 2010 [1 favorite]


I am stunned by the amount of rhetoric in this thread, and am especially aghast by the opinions anigbrowl is espousing.

The obvious solution is to conduct a public trial with a jury and follow through on the verdict.

If these people are apparently so dangerous that must be because of some evidence? Right? Present the evidence in a court of law and allow a jury to decide.
posted by Shit Parade at 1:28 PM on October 14, 2010


Smedleyman, good questions. In brief (because I shouldn't spend all day on this thread!):

#1. Most people are potentially dangerous - you, me, anyone who's able-bodied and can learn some basic skills. For that matter, a great deal of suffering results from negligence; people can be dangerous simply because they're not paying attention to safety.

But this is like saying that you're very fast, because if you jumped out of a plane you'd soon reach speeds of 150mph, or that you're rich today because you could begin investing successfully next week. The practical question here is whether or not a person is dangerous judged what they have done already - like traveling to another country and spending time with members of the world's best-known terrorist organization, without the justification of being a journalist or a spy.

#2. I entirely agree that terrorism is generally a criminal matter - both for pragmatic reasons and for the more fundamental one of upholding the rule of law, in the sense of putting yourself beneath it. You can't hold up the rule of law from above, because there isn't any higher position that doesn't rely on claims of religious knowledge. About the only exception is when you're facing such imminent danger that you must act in self-defense and have no time to explore other options.

But on the whole, that's how we've been handling matters whenever we come across an act of terrorism within the US. The situation with Al Qaeda was pretty different. There you have an organization that's acting across international borders, and sheltered by the Taliban, who are basically running Afghanistan as a medieval theocracy with guns...badly.

We could put sanctions on their travel and so forth, but that's less effective against a state which is deliberately isolating itself. We can't just parachute in the NYPD or FBI for obvious reasons, and Interpol is only as good as its member police forces. given the scope and severity of the attacks on September 11 - which demanded a response. There was no way for any government to say 'too bad folks, this is what we get for the bad policies of the 1980s,' which would have effectively validated bin Laden. It's one thing to examine your opponent's motives in order to reduce your future danger, but no legal system in the world expects you to thank him for doing you an injury. And when you have attacks that are staged across international borders, you run up against the limits of jurisdiction; even the Constitution makes provision for this.

The fact of the matter is that there are limits to what the legal system can do. It is a fantastic tool for collective self-governance, but its effectiveness and applicability is limited to our jurisdictional reach. There is such a thing as international law, but that is both limited in scope and largely lacking in enforcement because of jurisdictional problems. Whereas mathematical theorems work anywhere, legal theorems are only effective where the mechanisms exist to enforce a court's judgment.

We do have those now since we took all these people into custody and brought them into our jurisdiction one way or another. And we should take advantage of this to handle the cases in the most transparent manner we can. But we must also acknowledge that in Afghanistan, there were limits on the quality of the evidence we could collect - because of the fighting, and because under the Taliban governance and record-keeping were rudimentary at best. And we have to accept, at least until things change, that we still have people and relationships in that part of the world, whose safety we are responsible for, and which is still not really under US jurisdiction in any legal sense. So there are legitimate reasons to keep some matters secret so as not to jeopardize the safety of troops, or allies, or partners.

In sum, the judicial branch is on the same plane as the legislative and executive branches, all three of which support the Constitution by design, and imperfectly in practice. And even the Constitution can only provide very limited guidance on dealing with the complexities of the world beyond our borders. It can't solve our foreign policy problems for us, or make us energy-independent just because we agree on that as a policy goal, or settle arguments with people attempting to kill us. Problems like that, we just have to muddle through one step at a time.
posted by anigbrowl at 2:42 PM on October 14, 2010


I'm always aghast when someone makes sense.
posted by clavdivs at 2:54 PM on October 14, 2010


you are aware that anigbrowl is arguing for the status quo?
posted by Shit Parade at 4:18 PM on October 14, 2010


I am stunned by the amount of rhetoric in this thread, and am especially aghast by the opinions anigbrowl is espousing.

Man, you'd never guess I was the first person to post about this issue on MeFi earlier in the week, because I thought people should be aware of it. I'm sorry you find my opinions ghastly, but I'm just trying to describe my beliefs about how the world and human psychology work rather than how I would like them to work.

FWIW, I'm essentially a utilitarian, and not a deontologist: in other words, I look for the outcome that will result in the least degree of overall suffering, as best I can tell. I like the law very much indeed, even though it is a deontological system, because it helps us to overcome the limitations of foresight and insight. We are not very good at predicting the future, but law provides us with good methods and criteria for working our way through problems. So I think we should look for the best legal solution wherever possible, since that has worked pretty throughout history. I place a high value on the integrity of US legal system, which seems to me like the best in the world (I'm European incidentally, so I've had experience of several other legal systems and how they operate within those societies).

But legal systems aren't like physics, where discoveries and theories yield laws that are objectively true, at least for engineering purposes. Legal systems are mechanisms for solving social problems and essentially, predicting what a court will do. Law is not morality, although there is considerable overlap between the two and they influence each other to a great degree. When we are confronted with new situations, we sometimes have to come up with new laws and it's not always clear on how to formulate them. Some situations rob us of the freedom to deliberate, and we have to act first and reconcile those actions with the law later. Some situations affect us directly, but are beyond the scope of our jurisdiction.

Most of the time such problems are solved by mutual agreements between nations, but these arrangements are mutual, rather than subordinate to a higher authority. I'm a big fan of the UN, but it's only as effective as the depth of its consensus, which is often lacking. International law and relations are matters of trust and regard, which wax and wane with nations' interests, much like the relationships between individuals. If there were international laws that everyone were in agreement about, we could save a lot of time by just having the same legal system all over the world; but there aren't, so we can't.

When it comes to governance, the separation of powers is a wonderful, because the demands on government operate very different on the different branches. As I said earlier, I'd like to see Khalid Sheikh Mohammed tried in New York. I gather Eric Holder would too. But if Michael Bloomberg calls up Obama and Holder and says 'look, if we do this all signs point to dreadful riots,' that is something the executive branch has to consider. Is a trial right now worth the risk of dead civilians, police, or judiciary? How severe is the risk? Will it enhance the standing of our courts and our legal system if people attempt to prevent a trial taking place? Will this problem diminish a year from now, after the 10th anniversary of the attacks have passed? These are political questions, for which the legal system cannot provide definitive answers.

Now personally, I would prefer is resolving these matters and burnishing the Constitutional system of government and the social standing of the judiciary had been a higher priority of this administration. but there are competing priorities - to some it's terribly unjust to fret about the fate of prisoners in Guantanamo when many thousands of people are dying every year for lack of access to healthcare, or who think that abortion is so morally hideous that it dwarfs considerations of individual freedom, or that while we discuss these abstractions there are a lot of terrorists still trying to attack us, and that we would do better to set off a nuke somewhere so that people would get the message and leave us alone for a while, or that we're turning ourselves into economic slaves of China and are dooming ourselves and our children to poverty.

The point here is that because he have a diverse and highly pluralistic society, there are many sets of competing priorities. Some are catered to, many are not, but all of them place demands on the government, and place specific demands on the individual branches of government. It is extremely rare for there to be widespread agreement about what our top priorities should be and the order in which they should be attended to, and that makes things slow, and that pisses people off. It's unavoidable. what did Obama do this morning? I don't know offhand. Did he devote an hour to helping Americans stay in their homes, or having enough to eat, or closing Guantanamo, or seeing how things are going in Afghanistan, or where we're going to get energy from in 10 years, or how much oil is off the coast of Louisiana still, or why so many America kids are fat and how much is treating their diabetes going to cost?

It's easy to believe that governing is a case of decide something, issue a proclamation of some sort, yell at a few Congresspeople, take a quick trip on Air Force One, and make a speech about how things are going to be, and that's another problem solved. But it's not like that. People say well, Bush did things that way; but that's not actually true most of the time, we just remember the intensity of our reactions when he did do (or attempted to do) things that way. If we look into history we find FDR had man many unproductive days where the economy got worse, Congress and the courts wouldn't cooperate, and everybody was pissed off. We can do a documentary about the legacy of a president in 2 hours or read a book about it over 2 days or two weeks, but the reality of government is agonizingly slow by comparison.

Many people profess an interest in history, but few are patient enough to be historians. People express strong opinions about the law, but show little inclination to study it carefully, or at all on some issues. Almost everybody loves to complain about politics, but are turned off by the details of policy. I don't know of a single country in the world where they straightened this out with some intense brainstorming and then the country more or less ran OK by itself ever since. It's amazing really, because the one thing almost everyone seems to agree on, no matter what their political views, is that there's a simple solution to every problem. Why, I ask myself, haven't all these brilliant people put all their simple solutions together and just solved a whole bunch of problems in short order? Or write them down on a poster-sized sheet of paper - which would have room for quite a lot of simple solutions - and then just plaster copies of it everywhere, nail it to front door of Congress, put it on a t-shirt or whatever will keep it at the top of the pile.

OK, let's empanel a jury and hold a trial for each of these guys in Guantamo, or maybe one big trial for all 48 at once if you prefer. Tell me, specifically, how that would work - cause it's easy, right? I don't need it in legalese, plain English is fine. I just wonder about simple things, such as: where will it be, who will preside, how the jurors will be selected, what jurisdiction it will have, what standards of evidence it will use, how long it will probably take, and what sentences it can hand down.
posted by anigbrowl at 4:21 PM on October 14, 2010 [1 favorite]


status quo...is that like normalcy?
Many people profess an interest in history, but few are patient enough to be historians. People express strong opinions about the law, but show little inclination to study it carefully, or at all on some issues.

that right there is worth it. I also pointed out that the document was transmitted electronically which seems odd but i am more familar with civil/criminal law. But what about a printed copy. I'm sure there is reason, acurracy...hmmm...well....speed of the document arrival....hmm...and security matters which anig is addressing... with a razor by explaining intent which is key to this whole mess. The story is about legal tricks...semantics and redaction. The subject matter is GITMO and trials. Joe states torture bad.
this we can almost all agree.

even I know when to lie down.
if it makes you feel better,
shit parade
....ANIGBROWL USES SPELL CHECKER...

"Everything is discursive opinion instead of direct experience".
-A. R. Ammons
posted by clavdivs at 4:53 PM on October 14, 2010


But what if you have other evidence, albeit circumstantial, which gives you a strong reason to believe the person in your custody is extremely dangerous?

I know: let him (or her) go.

These guys are knuckleheads. They've gotten lucky a few times. I've never once been able to accept the "we are at war" premise. It sounds like the sort of pronunciation Orwell warned against. Like the war on poverty or the war on drugs: empty political constructions designed to justify hidden objectives. Which is why we blew up Iraq.

Continuing to work with the "war" concept while dealing with these chumps is carrying their water. It has lead most effectively the benefit of their movement, and to the erosion of our way of life.

Whose side are you on, really?
posted by fartknocker at 5:13 PM on October 14, 2010


ill take shit parade and fartknocker
someone mefie-mail dhartung if things git dicey

posted by clavdivs at 5:39 PM on October 14, 2010


we are not
at war
the premise is your own
for an opinon clothed in knowledge
and wrapped in concern
with an ja accuse twist.
posted by clavdivs at 5:42 PM on October 14, 2010


you are aware that anigbrowl is arguing for the status quo?

I am not. If you think that, then I apologize for wasting your time. If anything, I'm arguing for more substantive debate, and against the idea that democracy is most effectively conducted via one-liners, slogans, or zingers.
posted by anigbrowl at 5:48 PM on October 14, 2010


Solutions, not slogans!

Solutions, not slogans!

Solutions, not slogans!
posted by The World Famous at 6:30 PM on October 14, 2010


The practical question here is whether or not a person is dangerous judged what they have done already - like traveling to another country and spending time with members of the world's best-known terrorist organization, without the justification of being a journalist or a spy.

So they're spending time with terrorists. So? Unless you have evidence you can nail them for on their past actions or have some conspiracy charge to hang on them for potential future actions and they're not doing anything right now... nothing you can do.

Know what the intelligence community (and FBI organized crime investigators) call those people? Assets. Gold mines.

Social network analysis is free intel. You have someone active that you know is involved the last thing you want to do is you want to surveil the upper echelons of their outfit is plug up the potential intelligence you can glean from their movements by arresting their acquaintances and holding them indefinitely.
It's better just to talk to them (most terrorist organization cadre get involved because they feel socially alienated. Their social disaffection comes before their ideological commitment)
So just going up and chatting - better than running an intelligence operation like a game of 'telephone' and grabbing people that might be dangerous.
Practically speaking.

Politically - different story. Same deal with torture. Useless and counterproductive by anyone acquainted with such things. Some politicians love it. They're pushing a harmful agenda.
Harmful in the sense that it completely screws up successful counterterrorism. I don't mean that as a value judgment (although where I stand there is obvious).
Since skyjacking became popular (and radically dropped off as a feasible tactic in a spectacular fashion) one of the most successful techniques of fighting terrorism has been going after it on that social level.
Engagement of the socially disenfranchised. Moderation. Civil society.

The hard ass act does not work. The NOCS released members of the Red Brigade in Italy in the early '80s. Ostensibly for intelligence.
The Red Brigade ran guns and drugs, killed cops casually, bombed police stations and trains. Attacked military troop transports. They kidnapped a U.S. general.
These were guys who killed their own lawyers* for trying to defend them in court. *(Bushco argued that Yaser Hamdi was so dangerous we couldn't let him see his lawyer. That's nice work boys.)
You could say, yeah, they were committed.

But letting them go sowed distrust within the organization. Did they talk? Didn't they?
Doesn't really matter.
As it turns out the administration of justice and fostering cooperation really does a number on the social links terrorists form with each other.

In short - if the cops treat you nice and the justice system treats you equitably - are you really one of us any longer?
Plus you have an equitable justice system. Which is nice.

Wouldn't make for a good Tom Clancy book, but there it is.

The situation with Al Qaeda was pretty different.
State sponsored terrorism has been around since states began. Only thing that made the Base different was technology and coordination. And I'm not so sure about the latter.

We can't just parachute in the NYPD or FBI for obvious reasons, and Interpol is only as good as its member police forces. given the scope and severity of the attacks on September 11 - which demanded a response

You're conflating the military assault with counterterrorism operations. They're related. I've argued myself for the necessity of a military response in that region.

(It'd've been nice if we had one. We got a goofy morass.)

But they are very different kinds of force response. They are not simply different in degree.

GSG 9 for example has conducted thousands of operations and have not turned each mission into a bullet festival. They use military tactics and equipment, but are fundamentally a police unit.

Intelligence gathering and counterterrorism and counterinsurgency operations can run under, or apart from, military operations such as the Afghan invasion.
This does not mean though that infantry operations can take the place of them.

And just because someone is captured on a battlefield does not mean that state hostilities against them never cease.

How are we supposed to win a war that is infinitely prolonged?

Terrorists will never recognize any provisions for peaceful political change - THAT'S WHY THEY'RE TERRORISTS. Consequences is a game they don't really play. They're not into the whole 'winning' thing. They don't give up on terrorism if it fails nor generally seek paths that any society could reasonably make as a policy concession.
(One of Osama Bin Laden's demands is that the United States become an Islamic nation, follow the Shariah of Allah, become a "people of manners, principles, honour, and purity; to reject the immoral acts of fornication, homosexuality, intoxicants, gambling's, and trading with interest."
Yeah, like we could get right on that if we tried.)

The response of a state should not be in kind - that is - acknowledge that only strategic force settles the issue. But rather that this kind of force is illegitimate. Criminal.

What makes it all the worse is the violence itself scares people and makes the situation more intractable and generally leads to more 'hard-line' responses.
That is - people get scared and elect people who are more likely to disregard the law in order to appease their (justified or not) thirst for vengeance.
So our system gets fixated on ongoing means and identity - not ends. Much like terrorism itself.

And in so doing, we're likely to do more damage to ourselves.
This is manifest. Obvious.
The danger in fighting any opponent has always been that one become too much like that opponent.
Sure we all know our "Gaze into the Abyss" from Nietzsche, but it's a very real strategic problem. You wind up fighting the last war all the time.
This is true down to the individual level and is something that one must work to avoid.

One way to ensure that work is done is to externalize and codify it so it remains objective despite one's internal feeling.
In an individual this is called discipline. In a society it is law.

And even the Constitution can only provide very limited guidance on dealing with the complexities of the world beyond our borders.

Held up pretty well against the Barbary Pirates. Same situation, a state(s) (Tripoli/Algiers, etc) attacking American interests.

WWII we had Japanese internment but we recognized (by law even) that was based mostly on racism.
Congress even (later) ruled that Lincoln couldn't suspend habeus corpus during the civil war.

And, weirdly because it keeps coming up, the question of whether the constitution limits the actions of the U.S. government against foreign nationals has been settled since 1886.
The court said the provisions were "universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws" then and in 1950 reiterated it "But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments."
And again in 2008.
But I belabor the point. as typical

It's been reiterated innumerably. The constitution deals with complexity just fine. It's a living document that allows for changing conditions while adhering to universally applicable principles.

No, this latest thing is the same dance with a new enemy.

The best way of insuring we don't go down the same road again where we interred Japanese folks because we knew they were dangerous despite a lack of evidence*, is to adhere to the law. Not try to make it up as we go along.

*Indeed - General DeWitt said at the time that the fact that there had been no sabotage or domestic terrorism was, itself, a reason to imprison them.
("The fact that nothing has happened so far is more or less ... ominous in that I feel that in view of the fact that we have had no sporadic attempts at sabotage there is control being exercised and when we have it it will be on a mass basis.")

As it is it's gotten so politicized that even reading Miranda rights to foreign nationals was contested (offhand Abdul Mutallab).


OK, let's empanel a jury and hold a trial for each of these guys in Guantamo, or maybe one big trial for all 48 at once if you prefer. Tell me, specifically, how that would work - cause it's easy, right?

Easy? No. Already established? Yes.

We prosecuted, successfully, the people who tried to bomb the WTC the first time. We've prosecuted thousands of terrorists since 9/11.

The DOJ does a perfectly good job of dealing with the complexity of terrorism cases and can handle investigations and interrogations just fine.

The pseudo-para-military-Red-Cell-'24'-system cobbled together for political expediency - they've gotten, what, 3? 4? Two of them have been cut lose already.

What's the justification for allowing the primacy of potential threat over proven systems that alleviate the alienation and disaffection that lead to irrationality and violence like terrorism in the first place?

Why, so the government can infinitely hold someone on the basis of a case that it has to drop? The guys who apparently would fuck up a one car funeral are the guys we're going to trust counterterrorism policy to over the legal system?

posted by Smedleyman at 1:17 AM on October 15, 2010 [4 favorites]


(You'd have as much luck trusting me writing code)
posted by Smedleyman at 1:17 AM on October 15, 2010


Held up pretty well against the Barbary Pirates. Same situation, a state(s) (Tripoli/Algiers, etc) attacking American interests.

yes bribary and treaty negoations are synonoymous.
posted by clavdivs at 9:14 AM on October 15, 2010


Perhaps you were too eager at your perceived opportunity to "catch me out" to read my original sentence carefully.

Not really. I asked you to clarify what you were saying, I pointed to the information, and kindof hoped you'd put it together and move on instead of insisting on defending something wrong with ridiculousness like that "oh, well, the prosecution presented a terrible case, so naturally, they'd be incompetent censors."

Only the sentence doesn't say they concealed the torture. It says they concealed the unreliability of their evidence.

Except the rewrite of the opinion doesn't do that, either. Problems with the evidence are treated at length: among them, the torture, but also, say, the problem with "the investigator" / Larson's testimony as evidence that testimony wasn't compelled, or the fact that some pieces are hearsay, or problems with alias consistency, etc etc.
posted by namespan at 11:26 AM on October 15, 2010


Guantánamo, Exception or Rule?
posted by homunculus at 12:08 PM on November 4, 2010


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