8-22-09

Canadian, Sara Robinson, Calls Americans Who See Barack Obama As the Continuation of Little George's Attack on Our Constitutional Rights and Complain - Fascists, Racists, Sexist, Exclusionary, Less-educated, Ku Klux Klan types, German Brownshirts, Birthers, Goon Squads, Ect.

The first time I read parts of Canadian Sara Robinson's Fascists' Articles on Dandelion Salad, I shook with anger for three or four days. That was more than two weeks ago and I am still angry, until a few minutes ago when I realized Robinson has been hired on by the bad guys, Rothschilds and Rockefellers, to foment a Civil War in the United States. Robinson calls Americans names in the hope of bringing violence to the streets.

In researching Sara Robinson the first tell tale sign there is something up with her is when in her bio it says she lives in Vancouver, BC, Canada. Now why does a person who lives in Canada, for probably 20 years or so, call herself an American and use the words "we" and "our". Also where she posts her articles the other writers who post there have pictures of themselves. Sara does not. Why? Sara says she will be attending the University of Houston next year. Unless it is an Internet course it is my guess this is a big lie to sell the con Sara is an American living here when she is not. Her kind tell strategic lies.

Sara starts her Fascist article with the following sentence, "All through the dark years of the Bush Administration, progressives watched in horror as Constitutional protections vanished, nativist rhetoric ratcheted up, hate speech turned into intimidation and violence, and the president of the United States seized for himself powers only demanded by history's worst dictators." Well I guess I am a progressive because I too watched comrade Little George in horror, although I had predicted it, as he shredded our Constitution. This is where Sara and I part ways. The rest of the article Sara calls Republicans and people who are complaining about the state of affairs in the United States fascists and other names, as if name calling begets peace.

There are no accidents in this country when it comes to media coverage. If the media covers "anything" it is because the bad guys who own the media, the Rothschilds and Rockefellers, want the media to cover it. Since 1996 I have spent over $70,000.00 of my own money paying filing fees and running in 15 political races, and I know the media only covers its candidates chosen from who knows where, excepts the media does belittle those candidates it does not want to hold office. When I first started running for political office I got a little coverage until the media learned I was pretty good and my agenda was not the same as theirs. Since then I've gotten the Ron Paul type media shoulder, not to elevate myself to the level of Ron Paul. Just as the Rothschilds and Rockefellers manipulate Sunni and Shiite bloodshed in Iraq, it is my guess the Rothschilds and Rockefellers are manipulating the violence at County Commissioners meetings. The loon who took a gun to an Obama town hall meeting had to have been manipulated by Louie Freeh and the guys who manipulate our school kid shootings. That is way too stupid to be an accident. Why is Sara calling those people complaining at County Commissioners' meetings names. She loves to call Republicans Fascists. She says the Republican Party is behind the people complaining at the County Commissioners meetings. Who gave comrade Little George the votes to shred the US Constitution? Blue Dog Democrats. Why doesn't Sara Robinson call Blue Dog Democrats Fascists, Racists, Sexist, Exclusionary, Less-educated, Ku Klux Klan types, German Brownshirts, Birthers, Goon Squads, Ect. Because she is hired on to foster hate and bloodshed against the Republican Party. Why is Sara blaming Republicans when Obama has the exact same or worse agenda as that of Little George? The bad guys figure if Republicans are belittled out of existence then voters will think Obama's agenda is different than comrade Little George's. Getting rid of the Republican Party hides the fact Obama represents the War Party, torture, secrete prisons, military tribunals, signing statements, destruction of the US Constitution, spying on Americans, support of the corporations which make war materials, support of Generals who love the power of being at war, ie, the agenda of Blue Dog Wing of the Democratic Party.

Sara reminds me of a friend of forty eight years or so from New Orleans who is angry at me for equating comrade Obama to comrade Little George. Its taken me a bit to get a handle on his anger. My New Orleans' friend is so furious at comrade Little George for his destruction of New Orleans there is no way in his mind comrade Obama's classification of Americans as terrorists, his torture and secret prison advocacy, his signing statements, his financial decisions which help the bad guys can be compared to Little George's destruction of New Orleans' evil. He is lashing back at anyone or anything which reminds him of comrade Little George's evil, Republican Party or a person who equates comrade Obama with comrade Little George. I too will take great pleasure at watching comrade Little George get the needle for treason. But the bad guys want people so angry they will bring blood to the streets. What the bad guys, the Rothschilds and Rockefellers want, I don't. So I hope my friend realizes one day the Rothschilds and Rockefellers deliberately destroyed New Orleans in the hope that angry true Americans from Louisian take up arms so they can order comrade Obama to put the USA under Martial Law. The same bad guys, the Rothschilds and Rockefellers who had a ring in comrade Little George's nose and got him to destroy New Orleans (The Rothschilds and Rockefellers had as much fun in watching New Orleans' destruction as they did when they ordered the Holocaust and watching the bodies of Jewish women, children, and old men thrown in mass graves.) have a ring in comrade Obama's nose. I wonder if Sara Robinson realizes she has a ring in her nose and the Rothschilds and Rockefellers are pulling her around getting her to call Americans names in the hope she will be used to bring blood to the streets?

In her name calling fascist article, Sara Robinson takes a swipe at Americans who do not believe Obama is a "Natural born" citizen. Sara writes, "We see the Birther fracas -- the kind of urban myth-making that should have never made it out of the pages of the National Enquirer -- being openly ratified by Congressional Republicans." It seems to me the people who have a problem with true Americans questioning Obama's "natural born" citizenship are people from foreign countries, like her, Huffington, and Soros types, who could care less about the US Constitution. This group seems to know Obama is not a "natural born" citizen and their fear is that a Congressional bill might be passed which would force Obama to show his birth certificate before he can run in 2012. To my mind Obama is not a "natural born" citizen. The US Constitution refers to three types of US citizens. Of course I know Obama is a US citizen, naturalize or born, or possibly both. The Don't Give A Sh*t ers seem to argue that if a person is any type of US citizen, Naturalized, Born, or Natural Born, then, who cares, its just like hand grenades and horse shoes, close enough to be president. True Americans believe those who wrote the Constitution were smart, and if there are different categories of citizenship, its important. Remember, the guys who wrote the US Constitution, brung us, there Constitution made this country the greatest country on earth, not near do well wanna bees like Robinson, Huffington, or Soros. I believe the authors of the US Constitution feared a lack of loyalty if both parents were not US citizens. They also may have feared that if the son of/or the King of England had a child with a girl US citizen, then by birthright England could claim the United States as theirs by royal descent. To make sure England did not claim the USA by birthright, the framers of the US Constitution defined a person eligible to be president as having both parents US citizens at conception, "natural born." Thus, Obama is not "natural born" because his father was/is not a US citizen. Kenya may not claim the USA theirs, but there is Obama's loyalty issue. Time will tell how loyal Obama is to the US Constitution. So far, he's not very loyal, an Obama shrub, in my opinion.

comrade Robinson made a couple of points in her fascist article which may be memorable. The "forging of this third-stage alliance is the make-or-break moment." Maybe this means the Rothschilds and Rockefellers feel the USA is at the moment in time to make the USA a fascist country. "After Labor Day, when Democratic senators and representatives go back to Washington, the mobs now being created to harass them will remain to run the same tactics -- escalated and perfected with each new use -- against anyone in town whose color, religion, or politics they don't like. In some places, they're already making notes and taking names." Also maybe comrade Robinson knows, thanks to her article and others from her kind, there will be Rothschild Rockefeller manipulated mob rule after Labor Day.

By the way I was a Democrat for over 20 years. Why did I go to the Republican Party last year in October? Because Howard Dean threw the Democratic nomination to Obama and that is worst case vote fraud. One man nullifying votes of millions of Democrats, and he did not even use DREs. To my mind there is nothing more unAmerican than vote fraud. So I left. By the way, John McCain was on Barack Obama's side. It was Howard Dean's vote fraud which got me to switch parties, not John McCain.

The following are some of the lines from Sara Robinson's Fascist article that caught my special attention. After them you will find her article. Would a true American call Americans the names she calls us. Does Sara Robinson remind you of Adrianna Huffington and George Soros? People the Rothschilds and Rockefellers have brought to the USA to spread communism.

That description sounds eerily like the dire straits our Congressional Republicans find themselves in right now. Though the GOP has been humiliated, rejected, and reduced to rump status

GOP-sanctioned anti-immigrant groups

We see the Birther fracas -- the kind of urban myth-making that should have never made it out of the pages of the National Enquirer -- being openly ratified by Congressional Republicans.

he forging of this third-stage alliance is the make-or-break moment

After Labor Day, when Democratic senators and representatives go back to Washington, the mobs now being created to harass them will remain to run the same tactics -- escalated and perfected with each new use -- against anyone in town whose color, religion, or politics they don't like. In some places, they're already making notes and taking names.

Fascist America: Are We There Yet?
By Sara Robinson

August 6, 2009 - 1:23am ET

http://www.ourfuture.org/blog-entry/2009083205/fascist-america-are-we-there-yet

All through the dark years of the Bush Administration, progressives watched in horror as Constitutional protections vanished, nativist rhetoric ratcheted up, hate speech turned into intimidation and violence, and the president of the United States seized for himself powers only demanded by history's worst dictators. With each new outrage, the small handful of us who'd made ourselves experts on right-wing culture and politics would hear once again from worried readers: Is this it? Have we finally become a fascist state? Are we there yet?

And every time this question got asked, people like Chip Berlet and Dave Neiwert and Fred Clarkson and yours truly would look up from our maps like a parent on a long drive, and smile a wan smile of reassurance. "Wellll...we're on a bad road, and if we don't change course, we could end up there soon enough. But there's also still plenty of time and opportunity to turn back. Watch, but don't worry. As bad as this looks: no -- we are not there yet."

In tracking the mileage on this trip to perdition, many of us relied on the work of historian Robert Paxton, who is probably the world's pre-eminent scholar on the subject of how countries turn fascist. In a 1998 paper published in The Journal of Modern History, Paxton argued that the best way to recognize emerging fascist movements isn't by their rhetoric, their politics, or their aesthetics. Rather, he said, mature democracies turn fascist by a recognizable process, a set of five stages that may be the most important family resemblance that links all the whole motley collection of 20th Century fascisms together. According to our reading of Paxton's stages, we weren't there yet. There were certain signs -- one in particular -- we were keeping an eye out for, and we just weren't seeing it.

And now we are. In fact, if you know what you're looking for, it's suddenly everywhere. It's odd that I haven't been asked for quite a while; but if you asked me today, I'd tell you that if we're not there right now, we've certainly taken that last turn into the parking lot and are now looking for a space. Either way, our fascist American future now looms very large in the front windshield -- and those of us who value American democracy need to understand how we got here, what's changing now, and what's at stake in the very near future if these people are allowed to win -- or even hold their ground.

What is fascism?
The word has been bandied about by so many people so wrongly for so long that, as Paxton points out, "Everybody is somebody else's fascist." Given that, I always like to start these conversations by revisiting Paxton's essential definition of the term:

"Fascism is a system of political authority and social order intended to reinforce the unity, energy, and purity of communities in which liberal democracy stands accused of producing division and decline."
Elsewhere, he refines this further as

"a form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion."
.
Jonah Goldberg aside, that's a basic definition most legitimate scholars in the field can agree on, and the one I'll be referring to here.

From proto-fascism to the tipping point
According to Paxton, fascism unfolds in five stages. The first two are pretty solidly behind us -- and the third should be of particular interest to progressives right now.

In the first stage, a rural movement emerges to effect some kind of nationalist renewal (what Roger Griffin calls "palingenesis" -- a phoenix-like rebirth from the ashes). They come together to restore a broken social order, always drawing on themes of unity, order, and purity. Reason is rejected in favor of passionate emotion. The way the organizing story is told varies from country to country; but it's always rooted in the promise of restoring lost national pride by resurrecting the culture's traditional myths and values, and purging society of the toxic influence of the outsiders and intellectuals who are blamed for their current misery.

Fascism only grows in the disturbed soil of a mature democracy in crisis. Paxton suggests that the Ku Klux Klan, which formed in reaction to post-Civil War Reconstruction, may in fact be the first authentically fascist movement in modern times. Almost every major country in Europe sprouted a proto-fascist movement in the wretched years following WWI (when the Klan enjoyed a major resurgence here as well) -- but most of them stalled either at this first stage, or the next one.

As Rick Perlstein documented in his two books on Barry Goldwater and Richard Nixon, modern American conservatism was built on these same themes. From "Morning in America" to the Rapture-ready religious right to the white nationalism promoted by the GOP through various gradients of racist groups, it's easy to trace how American proto-fascism offered redemption from the upheavals of the 1960s by promising to restore the innocence of a traditional, white, Christian, male-dominated America. This vision has been so thoroughly embraced that the entire Republican party now openly defines itself along these lines. At this late stage, it's blatantly racist, sexist, repressed, exclusionary, and permanently addicted to the politics of fear and rage. Worse: it doesn't have a moment's shame about any of it. No apologies, to anyone. These same narrative threads have woven their way through every fascist movement in history.

In the second stage, fascist movements take root, turn into real political parties, and seize their seat at the table of power. Interestingly, in every case Paxton cites, the political base came from the rural, less-educated parts of the country; and almost all of them came to power very specifically by offering themselves as informal goon squads organized to intimidate farmworkers on behalf of the large landowners. The KKK disenfranchised black sharecroppers and set itself up as the enforcement wing of Jim Crow. The Italian Squadristi and the German Brownshirts made their bones breaking up farmers' strikes. And these days, GOP-sanctioned anti-immigrant groups make life hell for Hispanic agricultural workers in the US. As violence against random Hispanics (citizens and otherwise) increases, the right-wing goon squads are getting basic training that, if the pattern holds, they may eventually use to intimidate the rest of us.

Paxton wrote that succeeding at the second stage "depends on certain relatively precise conditions: the weakness of a liberal state, whose inadequacies condemn the nation to disorder, decline, or humiliation; and political deadlock because the Right, the heir to power but unable to continue to wield it alone, refuses to accept a growing Left as a legitimate governing partner." He further noted that Hitler and Mussolini both took power under these same circumstances: "deadlock of constitutional government (produced in part by the polarization that the fascists abetted); conservative leaders who felt threatened by the loss of their capacity to keep the population under control at a moment of massive popular mobilization; an advancing Left; and conservative leaders who refused to work with that Left and who felt unable to continue to govern against the Left without further reinforcement."

And more ominously: "The most important variables...are the conservative elites' willingness to work with the fascists (along with a reciprocal flexibility on the part of the fascist leaders) and the depth of the crisis that induces them to cooperate."

That description sounds eerily like the dire straits our Congressional Republicans find themselves in right now. Though the GOP has been humiliated, rejected, and reduced to rump status by a series of epic national catastrophes mostly of its own making, its leadership can't even imagine governing cooperatively with the newly mobilized and ascendant Democrats. Lacking legitimate routes back to power, their last hope is to invest the hardcore remainder of their base with an undeserved legitimacy, recruit them as shock troops, and overthrow American democracy by force. If they can't win elections or policy fights, they're more than willing to take it to the streets, and seize power by bullying Americans into silence and complicity.

When that unholy alliance is made, the third stage -- the transition to full-fledged government fascism -- begins.

The third stage: being there
All through the Bush years, progressive right-wing watchers refused to call it "fascism" because, though we kept looking, we never saw clear signs of a deliberate, committed institutional partnership forming between America's conservative elites and its emerging homegrown brownshirt horde. We caught tantalizing signs of brief flirtations -- passing political alliances, money passing hands, far-right moonbat talking points flying out of the mouths of "mainstream" conservative leaders. But it was all circumstantial, and fairly transitory. The two sides kept a discreet distance from each other, at least in public. What went on behind closed doors, we could only guess. They certainly didn't act like a married couple.

Now, the guessing game is over. We know beyond doubt that the Teabag movement was created out of whole cloth by astroturf groups like Dick Armey's FreedomWorks and Tim Phillips' Americans for Prosperity, with massive media help from FOX News. We see the Birther fracas -- the kind of urban myth-making that should have never made it out of the pages of the National Enquirer -- being openly ratified by Congressional Republicans. We've seen Armey's own professionally-produced field manual that carefully instructs conservative goon squads in the fine art of disrupting the democratic governing process -- and the film of public officials being terrorized and threatened to the point where some of them required armed escorts to leave the building. We've seen Republican House Minority Leader John Boehner applauding and promoting a video of the disruptions and looking forward to "a long, hot August for Democrats in Congress."

This is the sign we were waiting for -- the one that tells us that yes, kids: we are there now. America's conservative elites have openly thrown in with the country's legions of discontented far right thugs. They have explicitly deputized them and empowered them to act as their enforcement arm on America's streets, sanctioning the physical harassment and intimidation of workers, liberals, and public officials who won't do their political or economic bidding.

This is the catalyzing moment at which honest-to-Hitler fascism begins. It's also our very last chance to stop it.

The fail-safe point
According to Paxton, the forging of this third-stage alliance is the make-or-break moment -- and the worst part of it is that by the time you've arrived at that point, it's probably too late to stop it. From here, it escalates, as minor thuggery turns into beatings, killings, and systematic tagging of certain groups for elimination, all directed by people at the very top of the power structure. After Labor Day, when Democratic senators and representatives go back to Washington, the mobs now being created to harass them will remain to run the same tactics -- escalated and perfected with each new use -- against anyone in town whose color, religion, or politics they don't like. In some places, they're already making notes and taking names.

Where's the danger line? Paxton offers three quick questions that point us straight at it:

1. Are [neo- or protofascisms] becoming rooted as parties that represent major interests and feelings and wield major influence on the political scene?

2. Is the economic or constitutional system in a state of blockage apparently insoluble by existing authorities?

3. Is a rapid political mobilization threatening to escape the control of traditional elites, to the point where they would be tempted to look for tough helpers in order to stay in charge?
By my reckoning, we're three for three. That's too close. Way too close.

The Road Ahead
History tells us that once this alliance catalyzes and makes a successful bid for power, there's no way off this ride. As Dave Neiwert wrote in his recent book, The Eliminationists, "if we can only identify fascism in its mature form—the goose-stepping brownshirts, the full-fledged use of violence and intimidation tactics, the mass rallies—then it will be far too late to stop it." Paxton (who presciently warned that "An authentic popular fascism in the United States would be pious and anti-Black") agrees that if a corporate/brownshirt alliance gets a toehold -- as ours is now scrambling to do -- it can very quickly rise to power and destroy the last vestiges of democratic government. Once they start racking up wins, the country will be doomed to take the whole ugly trip through the last two stages, with no turnoffs or pit stops between now and the end.

What awaits us? In stage four, as the duo assumes full control of the country, power struggles emerge between the brownshirt-bred party faithful and the institutions of the conservative elites -- church, military, professions, and business. The character of the regime is determined by who gets the upper hand. If the party members (who gained power through street thuggery) win, an authoritarian police state may well follow. If the conservatives can get them back under control, a more traditional theocracy, corporatocracy, or military regime can re-emerge over time. But in neither case will the results resemble the democracy that this alliance overthrew.

Paxton characterizes stage five as "radicalization or entropy." Radicalization is likely if the new regime scores a big military victory, which consolidates its power and whets its appetite for expansion and large-scale social engineering. (See: Germany) In the absence of a radicalizing event, entropy may set in, as the state gets lost in its own purposes and degenerates into incoherence. (See: Italy)

It's so easy right now to look at the melee on the right and discount it as pure political theater of the most absurdly ridiculous kind. It's a freaking puppet show. These people can't be serious. Sure, they're angry -- but they're also a minority, out of power and reduced to throwing tantrums. Grown-ups need to worry about them about as much as you'd worry about a furious five-year-old threatening to hold her breath until she turned blue.

Unfortunately, all the noise and bluster actually obscures the danger. These people are as serious as a lynch mob, and have already taken the first steps toward becoming one. And they're going to walk taller and louder and prouder now that their bumbling efforts at civil disobedience are being committed with the full sanction and support of the country's most powerful people, who are cynically using them in a last-ditch effort to save their own places of profit and prestige.

We've arrived. We are now parked on the exact spot where our best experts tell us full-blown fascism is born. Every day that the conservatives in Congress, the right-wing talking heads, and their noisy minions are allowed to hold up our ability to govern the country is another day we're slowly creeping across the final line beyond which, history tells us, no country has ever been able to return.

How do we pull back? That's my next post.

Tip o' the hat to Chip Berlet and Steven Martin for their research help and encouragement.

Obama needs to prove, beyond a shadow of a doubt, that he is not perpetuating a Rumsfeld-lite form of detention, in which humane treatment is secondary to the quest for “actionable intelligence,” because, once the rules are discarded, our recent history shows us that what follows, inexorably, is torture and abuse.

— Andy Worthington, “Gitmo All Over Again” [August 17, 2009]

Bagram: Gitmo All Over Again

by Andy Worthington, August 17, 2009
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Back in September 2005, when I first began researching Guantánamo for my book The Guantánamo Files, the prison was still shrouded in mystery, even though attorneys had been visiting prisoners for nearly a year, following the Supreme Court’s ruling, in June 2004, that they had habeas corpus rights. Researchers at the Washington Post and at CagePrisoners, a human rights organization in the UK, had compiled tentative lists of who was being held, but, although these efforts were commendable, much of it was little more than groping in the dark – a broken jigsaw puzzle based on media reports and interviews with released prisoners – because the Bush administration refused to provide details of the names and nationalities of those it was holding.

In April 2006 – four years and three months after Guantánamo opened – the government finally conceded defeat, after the Associated Press took the Pentagon to court and won. That month, the first ever list of prisoners [.pdf] – containing the names and nationalities of the 558 prisoners who had been subjected to the administration’s combatant status teview tribunals (one-sided reviews, designed to rubber-stamp their prior designation as "enemy combatants") – was released, and was followed in May by a list of the 759 prisoners held up to that point (including the 201 who had been released before the tribunals began), which included names, nationalities, and, where known, dates of birth and places of birth [.pdf].

The government also released 8,000 pages of tribunal transcripts and allegations against the prisoners, which pierced the veil of secrecy still further, allowing outside observers, as well as lawyers, the opportunity to examine whether the government’s claims that the prison was full of terrorists were true, and to conclude that, actually, the prison was largely populated by innocent men or low-level Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the 9/11 attacks and had nothing to do with al-Qaeda or international terrorism.

These records revealed that an overwhelming majority of the men had not been seized by U.S. forces on the battlefield, but had been sold to them by their Afghan or Pakistani allies, at a time when bounty payments were widespread, and – perhaps most shockingly – the transcripts also revealed that a vast amount of the government’s supposed evidence consisted not of verifiable facts, but of "confessions" made by other prisoners – or by the prisoners themselves – under unknown circumstances. A great deal of demonstrably unreliable information was attributed to unidentified figures in al-Qaeda – in general, the "high-value detainees," including Abu Zubaydah and Khalid Sheikh Mohammed, who were being held in secret CIA prisons where the use of torture had been sanctioned by the Justice Department’s Office of Legal Counsel in its notorious "torture memos."

Other information came from unidentified "sources" within Guantánamo, and in the last year, as judges have finally been able to examine these allegations in the district courts charged with hearing the prisoners’ habeas corpus cases, many of these sources have been revealed as deeply untrustworthy: talkative informants regarded with suspicion by many of those working behind the scenes in the military and other agencies; mentally ill prisoners; and others whose accounts have not stood up to outside scrutiny and who have been revealed as part of a supposed "mosaic" of intelligence that, as one judge, Gladys Kessler, declared in May, "is only as persuasive as the tiles which compose it and the glue which binds them together." As I explained at the time, Judge Kessler "then proceeded to highlight a catalog of deficiencies in the tiles and the glue," dismissing the "mosaic" as being "composed of second- or third-hand hearsay, guilt by association, and insupportable suppositions."

In addition, although few of the prisoners were willing to talk to a panel of the military officers about how they had been abused in U.S. custody, enough accounts emerged for lawyers and observers (who also drew on official reports about how torture techniques, used in U.S. military schools to train U.S. military personnel to resist enemy interrogation, had been reverse-engineered for use at Guantánamo) to build up their own, more convincing "mosaic" of intelligence, demonstrating that abuse – and, in some cases, torture – was also widespread throughout Guantánamo, raising fears that even confessions that appeared legitimate were fatally tainted because they had been extracted using coercion.

It would be difficult to underestimate how important the release of these documents was to those engaged in a seemingly endless struggle to secure justice for those held without charge or trial, who had, in general, been rounded up indiscriminately and had never been adequately screened to determine whether they constituted a threat to the U.S. or its allies. However, over three years on from the release of these lists – and eight months into the Obama administration – history is repeating itself at the U.S. prison in Bagram airbase in Afghanistan. The difference, however, is that at Bagram the clock has stopped before any painful details of incompetence have been released, leaving lawyers and other observers still groping in the dark.

Fighting for the Rights of the Bagram Prisoners

On April 23, the ACLU filed a Freedom of Information Act (FOIA) request with the Department of Defense, the Justice Department, the State Department, and the CIA, asking them to make public "records pertaining to the number of people currently detained at Bagram, their names, citizenship, place of capture, and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as ‘enemy combatants.’"

On May 15, the CIA responded [.pdf] by stating that it "can neither confirm nor deny the existence or nonexistence of records responsive to your request," because "The fact of the existence or nonexistence of requested records is currently and properly classified," and on July 28, the DoD also responded [.pdf], stating, tantalizingly, that, although the National Detainee Reporting Center had provided the DoD’s Office of Freedom of Information with "a 12-page classified report, current as of June 22, 2009," which contained the prisoners’ "names, citizenship, capture date, days detained, capture location, and circumstances of capture," the report was "exempt for release" because it was "properly classified in the interest of national security."

In response, Jonathan Hafetz, a staff attorney with the ACLU National Security Project, stated, "The Obama administration should make good on its own pledge of greater transparency and release these basic facts about who we are detaining and under what conditions." Melissa Goodman, also a staff attorney with the ACLU National Security Project, added, "There are serious concerns that Bagram is another Guantánamo – except with many more prisoners, less due process, no access to lawyers or courts, and reportedly worse conditions. As long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that exist there."

In this, the ACLU’s lawyers were undoubtedly correct. According to the best available estimates, at least 600 prisoners are held at Bagram, but unlike Guantánamo, no lawyer has ever set foot in the U.S. military’s flagship Afghan prison, even though some of the prisoners held there were seized in other countries and "rendered" to Bagram, where they have been held for up to seven years. The prison was particularly notorious in its early days – especially in 2002, when at least two prisoners died at the hands of U.S. forces – but according to a survey conducted by the BBC in June this year, former prisoners, held between 2002 and 2008, stated that they were beaten, deprived of sleep, and threatened with dogs, and they provided no indication that conditions had improved from the beginning to the end of the six-year period.

Why Foreign Prisoners in Bagram Deserve Habeas Corpus Rights

To understand why Bagram needs independent scrutiny, it is necessary to distinguish between the prison’s two distinct functions, each of which fails to conform to internationally acceptable standards of detention. The first concerns the foreign prisoners (perhaps as many as 30) seized in other countries and "rendered" to Bagram. In March, when enterprising lawyers at the International Justice Network finally managed to bring a habeas corpus petition on behalf of four of these men in front of a U.S. judge (having established that they were held at Bagram through discussions with family members based on letters delivered by the International Committee of the Red Cross), the judge in question, John D. Bates, recognized the unacceptable discrepancy between the Guantánamo prisoners and those "rendered" to Bagram.

As I explained in an article at the time, "Judge Bates ruled that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, ‘the detainees themselves as well as the rationale for detention are essentially the same.’" He added that, although Bagram is "located in an active theater of war," and that this may pose some "practical obstacles" to a court review of their cases, these obstacles "are not as great" as the government suggested, are "not insurmountable," and are, moreover, "largely of the executive’s choosing," because the prisoners were specifically transported to Bagram from other locations.

This was good news for three of the men – Redha al-Najar, a Tunisian seized in Karachi, Pakistan; Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand; and Fadi al-Maqaleh, a Yemeni – because, as I also explained at the time, "only an administrative accident – or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo – prevented them from joining the 779 men in the offshore prison in Cuba." However, at the time of writing, it is uncertain whether they will have their day in court, as the government has appealed Judge Bates’ ruling.

Why the Afghans in Bagram Must Be Held According to the Geneva Conventions

In the same ruling in March, Judge Bates reserved judgment on the case of the fourth man, Haji Wazir, an Afghan seized in 2002 in the United Arab Emirates, but ruled in June that habeas rights did not extend to him (or, by extension, to all the other Afghans held at Bagram), primarily because he agreed with the government’s claim that to do so would cause "friction" with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government.

As a result, the government presumably feels entitled to continue to hold the majority of the prisoners in Bagram – who, from what we can gather, are Afghans seized in Afghanistan – beyond any kind of outside scrutiny. However, while this may be acceptable in the sense that Bagram is a prison in an active war zone, it is, to my mind, only acceptable if the government also demonstrates that it is holding prisoners in accordance with the Geneva Conventions. As I explained in an article in June:

"In one of his first acts as president, Obama signed a number of executive orders, in which he promised to close Guantánamo within a year and to ban torture, and established that the questioning of prisoners by any U.S. government agency must follow the interrogation guidelines laid down in the Army Field Manual, which guarantees humane treatment under the Geneva Conventions. The order relating to interrogations also specifically revoked President Bush’s Executive Order 13440 of July 20, 2007, which ‘reaffirm[ed]‘ his ‘determination,’ on Feb. 7, 2002, that ‘members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war.’"

As a result of Obama’s stated reforms, it was my belief that:

"[T]he president would call an immediate halt to what I can only describe as the ‘Rumsfeldization’ of the U.S. military, in which, following the directives of former defense secretary Donald Rumsfeld (and echoing what was happening with the intelligence agencies, where the FBI was sidelined by the CIA), the detention of prisoners was no longer a matter of holding them humanely until the end of hostilities, but became, instead, an ongoing process of interrogation, dedicated to securing ‘actionable intelligence,’ which, of course, degenerated into the use of torture when the presumed ‘actionable intelligence’ was not forthcoming. …

"It may be that the policies at Bagram changed overnight after Obama issued his executive orders in January, but the suspicion … is that, as far as the administration is concerned, certain key innovations in the ‘War on Terror’ – in particular, holding prisoners for their intelligence value, rather than to keep them ‘off the battlefield’ – has become the post-9/11 norm, as a kind of unilateral reworking of the Geneva Conventions."

From what I have been able to gather about the workings of Bagram, I have no reason to conclude that the prison is now being run according to the Geneva Conventions, with prisoners kept "off the battlefield" until the end of hostilities (whenever that might be). Instead, as I reported in March, Judge Bates explained that the military’s justification for holding the prisoners at Bagram involves a review process similar to the one that was used at Guantánamo, albeit one that is both "inadequate" and "more error-prone," and he concluded that the U.S. military’s control over Bagram "is not appreciably different than at Guantánamo." Creating such inadequate tribunals, it should be noted, is quite an achievement, as Guantánamo’s tribunals were soundly condemned by former officials who worked on them, including, in particular, Lt. Col. Stephen Abraham, who issued a series of explosive statements in 2007.

In addition, Judge Bates’ précis of the review process at Bagram, which, as he also explained, "falls well short of what the Supreme Court found inadequate at Guantánamo," was, in fact, genuinely disturbing. He quoted from a government declaration which stated that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does not even allow the prisoners to have a "personal representative" from the military in place of a lawyer (as at Guantánamo), and that "Bagram detainees represent themselves," and added, with a palpable sense of incredulity:

"Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an ‘enemy combatant’ designation – so they lack a meaningful opportunity to rebut that evidence. [The government's] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself."

A Challenging Conclusion, Mr. President

In conclusion, then, it should be apparent that the government cannot maintain the Bush administration’s status quo at Bagram, as it is failing on two fronts to hold prisoners according to the internationally acceptable standards of detention that existed before the Bush administration brushed aside the Geneva Conventions for prisoners of war and held criminal suspects beyond the law.

If the Obama administration will not put the foreign prisoners "rendered" to Bagram on trial, then the president needs to allow them to challenge the basis of their detention before an impartial judge; and if he reinstates the Geneva Conventions for prisoners of war, and, with a stroke of the pen, consigns his predecessor’s horrendous novelties to history, then he needs to do more than just pay lip service to the reinstatement of the Conventions. Obama needs to prove, beyond a shadow of a doubt, that he is not perpetuating a Rumsfeld-lite form of detention, in which humane treatment is secondary to the quest for "actionable intelligence," because, once the rules are discarded, our recent history shows us that what follows, inexorably, is torture and abuse.

Obama Maintains Bush Policies on Gitmo Uighurs

http://original.antiwar.com/worthington/2009/07/21/obama-maintains-bush-policies/

by Andy Worthington, July 22, 2009

Last Thursday, while most U.S. media outlets were focused relentlessly on the marathon endurance test that was Sonia Sotomayor’s Supreme Court confirmation hearing, the House Foreign Affairs Committee’s Subcommittee on International Organizations, Human Rights, and Oversight held a hearing to investigate why the Bush administration had allowed Chinese interrogators to visit Guantánamo to interrogate the prison’s 22 Uighur inmates in 2002.

Although 13 of the Uighurs are still held at Guantánamo (five were released in Albania in 2006, and four in Bermuda last month), all of the men – Muslims from China’s Xinjiang province who had fled persecution in China – were cleared of being "enemy combatants" by the Bush administration and by the U.S. courts. They were sold to the U.S. military by opportunistic Pakistani villagers, after fleeing from a run-down settlement in Afghanistan’s Tora Bora mountains, and should never have been held in the first place.

Thursday’s hearing involved some rather hard-hitting testimony about what those interrogations involved, about the complicity of the U.S. military and senior officials in Washington, D.C., and, most disturbingly, about the political motivations of the visit. It led to questions from the subcommittee about why members of Congress are prohibited from meeting prisoners at Guantánamo when Chinese intelligence agents were not, and to a demonstration of evasion on the part of the government’s spokesman that was so thorough that one of the committee members threatened to declare him "in contempt of Congress" and withdraw funding from his department.

The Associated Press reported that, in a written statement "that did not specifically mention the Uighurs" (.pdf), Jay Alan Liotta, the Defense Department’s principal director in the Office of Detainee Policy, claimed that the Defense Department "provides safe, humane, transparent, and legal custody for each detainee," and that, when foreign governments are allowed access to a prisoner, it is "long-standing department policy that visiting foreign officials must agree that they will abide by all DOD policies, rules, and procedures."

During questioning, however, Liotta "referred most lawmakers’ at-times incredulous queries to the Justice Department, or claimed the answer they sought was a national secret and could not be shared in a public hearing" (as ABC News described it). He also attempted to explain two contradictory points of view held by the Pentagon: on the one hand, he said that "[w]ithout question the single greatest reason to limit access to detainees is to provide for [the] personal safety" of those who visit them – U.S. politicians included – while on the other hand he stated that the Pentagon’s policy was also "built on a respect for the Geneva Conventions," which "requires the United States to shield detainees from ‘public curiosity.’"

This infuriated members of the subcommittee. Rep. Dana Rohrabacher (R-Calif.), a longtime supporter of the Guantánamo Uighurs, who criticized Newt Gingrich for promoting "fear-mongering" about them back in May, was, as ABC News explained, "visibly upset by the Obama administration’s apparent decision to continue the Bush administration’s policy of barring detainee visits by lawmakers." Rohrabacher stated, "I am being denied – all of us are being denied the same access that was denied during the last administration." After referring to George W. Bush as "a horrible man, a horrible president!" Rohrabacher added, "these very same restrictions on us are being reaffirmed in today’s testimony by this administration."

Rep. Jim Moran (D-Va.) was even more annoyed. In what was described as "a series of rhetorical questions," he said, "You allowed intelligence agents of a foreign country to interrogate [Uighur detainees], but you are concerned about their safety and that’s why you don’t allow United States members of Congress [to visit]?" and added, "You are concerned about ‘public curiosity’ – apparently you’re implying we’d be seeing them out of some public curiosity?"

When Liotta diverted questions to the Justice Department, or claimed that he could not answer because of national security issues, Moran grew even more angry. "My frustration continues to mount," he said. "In order not to answer a question, you can suggest it be provided in classified form. That’s not acceptable. There is no classification of that answer. This is a manipulative, evasive tactic you are employing." As ABC News described it, Moran suggested that Liotta "could be held in contempt of Congress, threatened to cut funding for the Office of Detainee Policy unless he got satisfactory answers, and said he thought Liotta ought to be fired," and exclaimed, "To take up two hours of our time and not directly answer any of the relevant questions is an absolute insult to the United States Congress."

Although Rep. Bill Delahunt (D-Mass.), the chair of the subcommittee, had more sympathy for Liotta, explaining, "I understand that this is a difficult moment for you," and adding, "I have no doubt that you have received instructions. … You find yourself in a very awkward situation," this was electrifying theater of an important kind. However, it was not the only shock of the day. The Uighurs’ lawyers have long contended that their clients were pawns in a diplomatic game, and in his testimony, one of the attorneys, Jason Pinney, spelled out this betrayal in stark terms [.pdf].

"For the past four years, I have been part of a team at Bingham McCutchen that has represented – on a pro bono basis – as many as 11 of the 22 Uighur men at Guantánamo," Pinney said. "None of these men are enemy combatants, and there has never been any justification for holding them. Thirteen Uighurs are still imprisoned at Guantánamo today. They remain there because no country – including our own – has the courage to stand up to the Chinese and offer them refuge."

As I have explained in numerous articles in the last year, all of this is true – and is disturbing enough on its own terms, particularly regarding the ongoing opposition to resettling some of the men in the United States – but as Pinney continued, an even more disturbing truth became apparent:

"The problem, however, goes far beyond our failure to resettle these men. An objective look at the evidence reveals that out country imprisoned the Uighurs as part of quid pro quo with China. China is one of five countries on the United Nations Security Council. In 2002 and 2003, we needed China’s support to invade Iraq. In exchange for Chinese acquiescence in our war plans, we agreed, among other things, to label the Uighurs as terrorists and house them at Guantánamo.

"What’s more, we agreed to provide the Chinese with special and unprecedented access to the Uighur men. In September of 2002, we allowed a delegation from the Communist Chinese government to travel to Guantánamo and interrogate the Uighurs imprisoned there. The interrogations lasted for days. Our clients were forced into cells, alone, with the Chinese. No representative from the United States was present during these interrogations. In the history of our republic, I cannot think of another example where a Communist country was invited in to interrogate, unsupervised, prisoners in a United States detention facility."

In a timeline of events, Jason Pinney spelled out more clearly how the Uighurs were used. On Dec. 6, 2001, for example, the State Department refused to designate the East Turkestan Independence Movement (the Uighur separatist movement, to which the Uighurs in Guantánamo were falsely alleged to belong) as a terrorist group. However, on Aug. 26, 2002, as Pinney described it, "U.S. Deputy Secretary of State Richard Armitage [met] with senior Chinese officials in Beijing to discuss the invasion of Iraq and immediately announce[d] that [ETIM would] be placed on the State Department’s list of terrorist organizations." The month after, the Chinese interrogators arrived at Guantánamo.

Jason Pinney also highlighted the double standards in the position taken by the Bush administration and maintained by the Obama administration in the instructions given to Jay Alan Liotta:

"Despite our best efforts, no one has been permitted to meet with our clients. The United Nations has been barred from meeting with the Uighurs. So have several human rights groups. The press has been denied permission to speak with the men, or to publish their pictures. Even the members of this subcommittee have been denied access to the Uighurs, despite the blessing of counsel. The answer has always been the same. No contact has been allowed. The exception to this rule? The Communist Chinese government."

In a separate article, I reproduce in full the testimony of three of the Uighur prisoners, describing their interrogations by the Chinese agents, but what is particularly disturbing about their testimony – beyond the threats made by the agents – is the extent to which the U.S. military helped out, "softening the men up" by routinely waking them up at 15-minute intervals the night before (as a Justice Department report explained last year), short-shackling them in painfully cold rooms in between interrogations, holding them in isolation for between five and 20 days after the interrogations, and physically forcing them to have their photos taken after they refused to cooperate. As Ablikim Turahun, one of the four men released in Bermuda last month, explained:

"They attempted to take my picture; however, I did not agree to this. They called for American soldiers and ordered them to hold me, so that my picture could be taken. The soldiers grabbed me, pulling my beard, pressing on my throat, twisting my hands behind my back, and as a result my picture was taken by force."

Most disturbing of all, however, was the betrayal of the Uighurs’ personal details. Abu Bakker Qassim, one of the five Uighurs released in Albania in May 2006, explained, "When we were first interrogated at the Kandahar prison, we told the Americans that we would tell them everything if they would keep our materials confidential. They promised not to give our materials to the Chinese, or to hand us over to [the] Chinese." At Guantánamo, however, "When some Uighur detainees refused to give their names, the Chinese interrogators said that the Americans they trusted had already provided them with their photos, full names, and addresses."

Qassim explained that the danger was that "the Chinese could now randomly oppress our family members," but when he "asked the interrogators why they released all of our materials to the Chinese even though they promised to keep our information confidential," they "did not feel a bit ashamed about it. They apologized by saying that someone in Washington gave our materials to the Chinese."

As a result of the hearing, the subcommittee pledged to continue its attempts to hold the Bush administration accountable for its actions. "I want to know who was to blame for that decision," Dana Rohrabacher said of the Chinese interrogations, and Bill Delahunt made clear [.pdf] that it was the subcommittee’s "intention to provide a venue, whether here in Washington or elsewhere, for these men – who have fled Chinese persecution – to come forward and testify so that our colleagues and the American people can have an opportunity to hear them – firsthand – and make their own judgment."

Delahunt remained appalled that the committee’s request to visit the Uighurs had been denied by the Bush administration and that "we never received a satisfactory explanation for why our visit was refused," and his response to the only explanation he did receive, via a Fox News broadcast in which the DOD stated, "no congressman can interrogate or question detainees because it is not part of their oversight responsibilities," was an unwavering assertion of congressional powers:

"Let me first address the issue of oversight responsibility. I want to be very clear – there was no congressional oversight during the Bush-Cheney administration. It simply did not exist. As former Sen. Chuck Hagel said, the Bush-Cheney administration treated Congress ‘like a constitutional nuisance.’ I reject any suggestion that the executive can define what constitutes the congressional oversight. It is not the prerogative of the executive to determine the role of the first branch of government. I am confident this position is shared by most, if not all, members of Congress."

Delahunt also quoted George Washington’s hope that America "might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong," and maintained that the U.S. still had an obligation to "parole and resettle at least some of the Uighurs at Guantánamo into the United States." He announced his intention to send a letter to this effect to President Obama and Defense Secretary Robert Gates in the near future, and, in conclusion, I can only hope that it meets with success.

Accepting some or all of the Uighurs into the United States would not only help to encourage other countries to accept cleared Guantánamo prisoners, it would also send a clear signal that Obama regrets sending Jay Alan Liotta to the House hearing to provide "an absolute insult to the United States Congress," and is, moreover, determined to establish without a doubt that he repudiates the terrible effects of the Bush administration’s almost indiscriminate detention policies in the "War on Terror."

Former Insider Shatters Credibility of Military Commissions

http://original.antiwar.com/worthington/2009/07/12/former-insider-shatters/

by Andy Worthington, July 13, 2009

On Thursday, I reported how retired Rear Adm. John D. Hutson, judge advocate general of the U.S. Navy from 1997 to 2000, had delivered compelling testimony to a Senate Armed Services Committee hearing on “legal issues regarding military commissions and the trial of detainees for violations of the law of war,” explaining why the only valid forum for trials of suspected terrorists at Guantánamo Bay is the U.S. federal court system.

The lucidity and directness of Hutson’s testimony was in marked contrast to the amendments to the existing military commissions system – and terrifying asides about the use of “preventive detention” – that were proposed by Jeh Johnson, the Defense Department’s general counsel, and David Kris, the assistant attorney general in the Justice Department’s National Security Division, in response to legislation already prepared by the committee, which, it seems, will be presented to the Senate in the imminent future, even though it still allows (subject to certain restrictions) the use of information – I hesitate to use the word “evidence” – obtained through coercion and other information that is nothing more than hearsay.

The day after Hutson delivered his testimony, the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary held a hearing on “Legal Issues Surrounding the Military Commissions System,” in which Lt. Col. Darrel Vandeveld of the U.S. Reserves, a former prosecutor in the military commissions, delivered what should, I believe, be the final word on the unsuitability of military commissions as a valid trial system [.pdf].

Vandeveld, who served in Bosnia, Africa, Iraq, and Afghanistan before volunteering for Guantánamo, and who has been decorated on several occasions, sent shockwaves through the commissions system under the Bush administration when he spectacularly resigned last September, declaring, “I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the commissions, about the slipshod, uncertain ‘procedure’ for affording defense counsel discovery.” He added that the “incomplete or unreliable” discovery process “deprive[s] the accused of basic due process and subject[s] the well-intentioned prosecutor to claims of ethical misconduct.”

The particular trigger for the dissatisfaction that led him to tell the committee about “the mistaken proposals to revise and revive the irretrievably flawed military commissions at Guantánamo Bay” and that turned him from, as he described it, a “true believer to someone who felt truly deceived,” was the incompetence and obstruction he encountered as he tried to build a case against Mohamed Jawad, an Afghan prisoner accused of throwing a grenade that injured two U.S. soldiers and an Afghan translator in December 2002. It was this journey to the “dark side” that he reprised for the committee on Wednesday to such devastating effect.

How Vandeveld Came to Oppose to the Military Commissions

Telling the committee that he had not always been “skeptical about the capacity of military commissions to deliver justice,” Vandeveld admitted that, at the beginning of his assignment at Guantánamo, when Jawad “told the court that he was only 16 at the time of his arrest, and that he had been subjected to horrible abuse, I accused him of exaggerating and ridiculed his story as ‘idiotic.’” He added, “I did not believe that he was a juvenile, and I railed against Jawad’s military defense attorney, whom I suspected of being a terrorist sympathizer.”

Vandeveld explained that, initially, the case against Jawad “seemed uncomplicated,” because he had “confessed to his role in the attack on a videotape recorded by U.S. personnel,” and, as a result, the case “seemed likely to produce a quick, clean conviction, and an unmarred early victory for the prosecution, vindicating the concept” of the commissions.

As he “delved deeper into Jawad’s case file,” however, he “soon discovered a number of disturbing anomalies.” Vandeveld explained that when he “attempted to bring these anomalies to the attention of my supervisors, they were harshly dismissive of my concerns and actually, on some unspoken level, began to question my loyalty, even though my combat experience exceeded both theirs combined.” He continued:

"I began to realize that the problems with Jawad’s case were symptomatic of the military commissions regime as a whole. Indeed, if any case was likely to be free of such anomalies, it should have been that of Mr. Jawad, whose alleged crime was as straightforward as any on the prosecutor’s docket. Instead, gathering the evidence against Mr. Jawad was like looking into Pandora’s Box: I uncovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.

"Evidence from U.S. Army criminal investigators showed that Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs while in U.S. custody in Afghanistan. Detainee records show that once at Guantánamo, he was subjected to a sleep deprivation regime, known as the ‘frequent flier program,’ during which he was moved to different cells 112 times over a 14-day period – an average of once every two and a half hours – and that he had tried to commit suicide by banging his head repeatedly against a wall. Evidence from a bone scan showed that he was, in fact, a juvenile when he was initially taken into U.S. custody. Field reports, and examinations by U.S. personnel in the hours after Jawad had been apprehended, indicated that he had been recruited by terrorists who drugged him and lied to him, and that he probably hadn’t committed the crime for which he was being charged. In fact, the military had obtained confessions from at least two other individuals for the same crime."

As a result, Vandeveld explained, he “came to realize that Mr. Jawad had probably been telling the truth to the court from the very beginning,” but when his subsequent attempts to secure a plea bargain that would allow Jawad to be repatriated fell on deaf ears, he made the “enormously painful decision to ask to be reassigned from the commissions.” As he explained, “I simply could not in good conscience continue to work for an ad-hoc, hastily created apparatus – as opposed to the military itself – whose evident resort to expediency and ethical compromise were so contrary to my own and to those the Army has enshrined and preached since I enlisted so many years ago.”

Vandeveld Condemns the Commissions

Vandeveld’s personal experience of incompetence and obstruction in the case of Mohamed Jawad is shocking for two reasons: first, because, although a military judge threw out the only supposed evidence against Jawad in October and November last year, ruling that two confessions obtained on the day of his arrest in Afghan and U.S. custody were the result of torture, and although Vandeveld delivered a more expansive explanation of why there was no case against him in a submission accompanying his habeas corpus petition in January, the Obama administration has not followed Vandeveld’s advice about repatriating Jawad, and the Justice Department has refused to drop the case.

Just last week, this inexplicable obstinacy on the part of the DOJ led his civilian lawyers at the ACLU to lodge a petition urging the judge to throw out information extracted during 57 subsequent interrogations, which was aptly described by one of his lawyers, Jonathan Hafetz, as confirmation of the government’s “continued reliance on evidence gained by torture and other abuse,” which “violates centuries of U.S. law and suggests the current administration is not really serious about breaking with the past.”

However, while this is certainly a painful example of the Obama administration’s insistence on pursuing worthless and embarrassing cases that seem only to confirm a dogged determination to defend the colossal errors made by the Bush administration (as I also explained here and here), Vandeveld’s experience of Jawad’s case enabled him to confirm to the committee not just that one particular case was tainted by incompetence and obstruction, but that the entire system is irredeemably flawed and cannot be repaired by changing a few of the rules. As he explained in his statement:

"I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded."

He added, crucially, “The military commissions cannot be fixed, because their very creation – and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees – can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.” This was similar to Adm. Hutson’s observation that “You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.” However, Vandeveld then proceeded to provide three concrete examples of institutional problems, “each of which I witnessed during my time at Guantánamo and which would remain problematic under the present proposal”:

“the rules of admissibility of evidence, including the relaxation of restrictions on the admissibility of evidence obtained through coercion and hearsay”
“the gathering and handling of evidence, including legal and institutional restrictions on the disclosure of sensitive or classified evidence to the defense”
“institutional deficiencies, including the insufficient experience and qualifications of both judges and counsel, and the inadequate provision of resources to the defense”
The Problems With Coercion and Hearsay

After stating that each of these shortcomings “will prove persistent even in the face of the most ardent, well-meaning legislative repackaging,” Vandeveld attacked the Senate Committee’s proposal to “continue to allow into evidence statements obtained through coercion.” The wording of the legislation (see Section 1031) stipulates that “A statement in which the degree of coercion is disputed may be admissible in a trial by military commission … only if the military judge finds that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (2) the interests of justice would best be served by admission of the statement into evidence; and (3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005."

For Vandeveld, however, this remained unacceptable, and he stated, bluntly, “The impetus for this rule is obvious. The sad reality is that virtually every detainee – Mohamed Jawad is a salient example – has been subjected to torture and abuse repeatedly. Many of them are mentally ill as a result, some profoundly so.”

In addition, after noting that the prohibition on the use of coerced statements exists because of “moral repugnance” and because they are “unreliable,” Vandeveld noted that, although in some cases, including those of the “high-value detainees,” coerced statements “may be corroborated by evidence that would be admissible,” for many other prisoners the decision to proceed with coerced statements is desperately unsound:

"Disallowing evidence obtained through coercion would result in the evisceration of many of the cases that might otherwise, on the most tenuous of theories, have been prosecuted. Instead of recognizing this sad reality and resettling or repatriating those prisoners against whom the government has insufficient and tainted evidence, the present legislation, in effect, opts to continue the charade."

For similar reasons, Vandeveld then dismissed the use of information obtained through hearsay, disputing Sen. Carl Levin’s explanation during the Senate committee hearing on Tuesday that the committee’s revisions ought to be acceptable because they were designed to “eliminate the extraordinary language in the existing law which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative.”

He also took exception to President Obama’s claims that the use of hearsay “would be consistent with international standards, such as those employed in international criminal tribunals,” because, he said, the president’s opinion failed to take into account that judges in those cases are “qualified to consider hearsay and determine its value,” whereas the “lay jurors” in the commissions – whose role would essentially be the same in any system revised by Obama – are not.

The Problems With the Gathering and Handling of Evidence

Moving on to the “gathering and handling of evidence,” Vandeveld noted that the commissions suffered from “enormous problems,” primarily because, unlike “the investigations and case files assembled by military or civilian police agencies and prosecution offices,” the commissions had – and will continue to have – “no central repository for case files, no method for cataloguing and storing physical evidence, nor any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution.”

This is damning enough, but, citing his experience with Jawad, Vandeveld also explained why the case files were so chaotic. “The obvious reason behind the shoddy preparation of evidence against Mr. Jawad,” he said, “is that it was not gathered in anticipation of any semblance of a ‘real’ trial.” He added:

"With the government setting an extremely low evidentiary bar for continued detention without charge, with the focus on extracting information through coercive interrogations rather than on prosecution, and with the understanding that any trials will forego fundamental due process protections, there is little incentive for investigators to engage in the type of careful, systematic gathering of evidence that one would find in a typical civilian trial."

Allied to this particular problem, which, it is clear, can only be addressed adequately by dropping cases in which “the government has insufficient and tainted evidence” and putting the rest into federal courts, where this type of systemic evasion will be impossible, are what Vandeveld referred to as “the excessive restrictions on the disclosure of classified or sensitive evidence to defense counsel.”

This, again, is clearly part of the very architecture of the commissions, designed, in an essentially lawless manner, to prevent any obstacles to prosecution, and as Vandeveld spelled out, in practice the almost obsessive focus on secrecy serves only to discredit the entire process. Unmoved by Sen. Levin’s unsubstantiated claim that the committee’s revisions will “eliminate the unique procedures and requirements which have hampered the ability of defense teams to obtain information and led to so much litigation,” Vandeveld described a process in which secrecy (to the detriment of the defense) was absolutely central, and he made it clear that he found it inconceivable that the necessary changes were even remotely feasible.

“Over-classification and protective orders can make it almost impossible for defense attorneys to formulate a viable case,” he said, adding that, although there was “no reason” to deny attorneys access to this information, because they “can and should be trusted not to share such information with their clients as the law requires,” the endemic focus on secrecy meant, in reality, that “names of potential defense witnesses are routinely redacted from discovery materials, and protective orders hinder the defense’s ability to ascertain such witnesses’ identities through its own investigation.”

Institutional Deficiencies

Beyond the chaos that makes it “nigh impossible for prosecutors to comply with the discovery obligations mandated by their rules of professional conduct,” Vandeveld also identified numerous other “institutional deficiencies” with the commissions, which as he stated, “undermine the pursuit of justice and have created a kind of ‘circus’ atmosphere at GTMO.” These include the lack of experience of the military judges (even though many of them displayed a “remarkable independence” and refused to “serve as little more than an ‘amen chorus,’ witlessly endorsing every pronouncement, however thin, false, or ill-conceived,” that was put forward by the prosecution) and the inadequate provision of resources to the defense.

Although he was “pleased to see” that the Senate committee referred to a call from the Office of the Chief of Defense Counsel at the commissions for more resources to defense counsel, including bringing to an end the patently biased practice of allowing the prosecution to have “input on defense resources,” he insisted that, for these particular reforms to meet necessary standards, they “cannot be simply recommended, they must be mandatory.”

Vandeveld’s Conclusions

In a neat conclusion, Vandeveld asked the committee to consider how they would react to “the kind of role reversal that senior military officers routinely consider”:

"Imagine that U.S. soldiers captured on the battlefield were, today, being subjected to the type of trial proceedings that we plan to set up through these military commissions. Imagine that our service members had been tortured or abused, and that the commissions hearing their cases allowed into evidence statements obtained through coercion. Imagine that defense counsel were thoroughly under-resourced and prohibited even from viewing information critical to their cases, and that exculpatory evidence was hidden. Imagine that the evidence against our soldiers was so weak, and had been gathered in such a shoddy and disorganized manner, that the commissions allowed hearsay into evidence – to be analyzed not by professional judges but by lay jurors – just to ‘make sure’ that any and all prosecutions were successful. How would out government react to such trials? I imagine the uproar would be close to deafening."

Vandeveld added that “even the well-intentioned changes made to the military commissions by the Senate Armed Services Committee legislation will create a real risk that, in future, American men and women in uniform will be subject to a farcical trial of this nature,” and, in his final words, emphasized the only just manner in which to proceed:

"We do not need military commissions. They are broken and beyond repair. We do not need indefinite detention, and we do not need a new system of ‘national security courts.’ Instead, we should try those whose guilt we can prove while observing ‘the judicial guarantees which are recognized as indispensable by civilized peoples’ – in other words, using those long-standing rules of due process required by Article III courts and military courts-martial – and resettle or repatriate those whom we cannot. That is the only solution that is consistent with American values and American law."

Sadly, Vandeveld’s unparalleled dissection and repudiation of key deficiencies at the heart of the commission system – which, as he correctly observed, are without doubt immune to the kind of cosmetic changes endorsed by the Defense Department, the Justice Department, and the Senate committee – already appears to be a mere footnote of dissent in the revival of the commissions.

As Vandeveld explained to me in an e-mail on Thursday, although he cannot fundamentally understand why Obama is determined to go forward with the commissions, a plausible theory was put forward during the committee meeting: namely, that “the president has too many issues he’s concerned with, and has to rely on his advisers to advise him correctly. Of course, these advisers all come from the National Security Division of the Department of Justice, most of them holdovers from the prior administration, so I suppose their recommendations were and are predictable.”

I received a more withering analysis from someone else who intimately understands the irremediable deficiencies of the commissions, a former senior official who was involved in the novel trial system for many years, who explained to me that, although he was certain when Barack Obama was elected that we were seeing the final days of both Guantánamo and the commissions, it was “disappointing, to put it mildly, that despite being promised ‘change we can believe in,’ we’re getting more of the same old Bush-Cheney policies when it comes to national security.”

Expanding on Vandeveld’s concerns about “holdovers” from the Bush administration, the former senior official explained that it was no surprise that Bush-era policies were still being pursued, because Robert Gates is still running the Defense Department; Susan Crawford, a close friend of Dick Cheney and his chief of staff, David Addington, is still in place as the commissions’ convening authority, responsible for deciding who should be put forward for trial; Brig. Gen. Thom Hartmann, her discredited legal adviser, continues to orchestrate the commissions; George Toscas is still serving as the senior Justice Department attorney on matters of national security; and Capt. John Murphy, the new chief prosecutor, has “taken off his Justice Department suit and put on a Navy uniform, giving DOJ control over the prosecution.”

In a sentence that sums up the increasing sense of disillusion felt by those who expected Barack Obama to work closely with those who resisted the grossest iniquities of the Bush administration, the senior official also noted that it was disappointing that Justice Department and Defense Department officials who stood up to Bush and Cheney and were ostracized for their integrity continue to be ostracized by Obama.

In conclusion, I can only agree wholeheartedly and add my own disappointment that those of us who spent long years pointing out the horrors of the Bush administration’s policies and waiting for the demise of that particular cabal in the expectation that America would once more respect its role as a nation founded on the rule of law are still obliged to struggle to have our voices heard, even though what is at stake – repairing the damage wrought by the Bush administration and ensuring that the handful of genuine terror suspects at Guantánamo are tried in a forum that will meet internationally recognized standards – is of critical importance.