A Two-Tiered System of Justice

The blogosphere is all fired up regarding the recent news that Khalid Sheik Mohammed and five others are going to be brought to the United States to stand trial in civilian court. Here is one example from Doug Payton over at Considerettes:

Khalid Sheikh Mohammed, self-proclaimed mastermind of the 9/11 attacks, is being promoted to, what amounts to, full citizen of the United States of America for purposes of standing trial, in civilian court, for his war crimes. He’ll get all the rights and privileges afforded citizens, and even just residents living under the laws of our land, even though he has never been either of those.

Nazis are rolling over in their graves. No doubt John Kerry, who called the war on terror a "law enforcement" issue is feeling vindicate today.

I suppose this type of reaction from the right is to be expected, even complete with hyperbole about Nazi's!

I first heard of this news on NPR in my car this morning and while my initial inclination was to applaud the Obama Administration for finally bringing charges against these individuals I then heard the other half of the announcement. Namely:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

Al-Nashiri is an accused mastermind of the deadly 2000 bombing of the USS Cole; Khadr is a Canadian charged with the 2002 murder of a U.S. military officer in Afghanistan. Khadr was 15 years old when he was captured in July 2002.

Holder said a venue for the military commissions has not been set.

Sigh. So the American system of justice is good enough for some, but we must resort to the controversial "Military Commissions" for others? That sure sounds like a two-tiered system of justice to me. Despite all the comments I have seen today saying that we should just execute KSM or that he shouldn't be afforded a trial, we should aspire to be a civilized society that has a fair justice system that can be applied to even the "worst of the worst". A fair justice system does not seem to jive with the ability of our leadership to simply pick and choose which accused terrorists get afforded a system of justice like that practiced in our civilian courts and which detainees will have to go through the more controversial Military Tribunal system that has been largely criticized.

The obvious question in this situation (as is all too often the case) is why? Why are some detainees deemed fit to stand trial in the United States under one system of justice while others will be tried under Military Commissions? Glenn Greenwald has some ideas:

So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still -- those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you'll get just enough to be convicted isn't a justice system at all. It's a rigged game of show trials.

I think these implications and observations that are made by Greenwald, are being grossly overlooked in the corporate media's discussions on this issue. Most discussions are largely focused on the impact of bringing KSM to the United States for trial and the so-called "security risks" that it could pose. The greater implication that Grennwald outlines, is why these two systems of justice are being written. A very telling portion of Attorney General Eric Holder's statement on this issue was this segment (emphasis mine):

In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July. Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee.

More Greenwald:

There's supposed to be one justice system for everyone -- not multiple ones from which prosecutors can pick and choose based on assurances of ongoing imprisonment. Highlighting how dangerous this is, the DOJ's investigation of al-Nashiri was originally classified as a standard criminal case, but -- as his counsel pointed out today -- he was assigned to a military commission because there simply isn't sufficient evidence to convict him in a real court.

[...]

And for those of you who favor what Obama did today, I have two questions: (1) are you in favor of allowing serial murderers and child rapists to go free if the evidence against them is "tainted," or should special commissions be created to ensure their conviction, too; and (2) did you defend the Bush administration's use of military commissions on the same grounds that you're defending Obama today?

This system, that of our leadership being able to decide which system of justice each detainee gets, is flawed at best and has the potential to be unjust at worst. These criticisms are why these actions were opposed so strongly when former President Bush implemented these Commissions and why they should be equally opposed as President Obama continues their use.

More that has yet to be Revealed on Torture

Scott Horton has a great post in which he discusses seven of his observations surrounding the recent release of the 2004 Inspector General report. His whole post is worth a full read and you can find it here, but in the meantime, here are a few of his observations:

1. The worst is yet to come. Yesterday the CIA released a fresh copy of the report with roughly half of the “case study” discussion now unmasked. But context and placement suggest that the material that remains concealed contains some of the worst discussion of abuse in the report. The heavy redactions start around page 25, and the redactions cover discussion of the origins of the program and the approval process, as well as the discussion of specific prisoners, notably Abu Zubaydah, Abd al-Rahim al-Nashiri, and Khalid Shaikh Mohammad. Although cases in which the guidelines provided by the Justice Department were exceeded have been discussed, it’s likely the case that the still blacked-out passages cover instances where Justice gave a green light but the conduct was so gruesome that CIA wants to keep it under wraps. That means we haven’t heard the last of the Helgerson report, and further disclosures are likely.

2. Opposition from within. For years the CIA has said that CIA personnel would be demoralized and the reputation of the agency would be damaged by disclosure of the contents of the report. But the report documents just the opposite. The Inspector General’s review was launched by complaints coming from valued senior employees who felt that the Bush Program (as John Yoo has dubbed it) was wrong. One of them actually expresses his worry that those involved will be hauled before the World Court at some point because of [and that’s redacted!] This makes clear that good employees of the agency opposed the Bush Program, were vocal in their opposition, and focused concern on the program’s illegality. The OLC memos were intended to silence these complaints, but they only accentuated the agency’s morale problems by enmeshing it in obviously illegal and immoral conduct. By contrast, the number of CIA personnel involved in pushing it through and supporting it is tiny—probably not many more than two dozen—though their voices are heard very loudly. It’s interesting that in a stream of appearances by CIA personnel on TV yesterday—Tyler Drumheller, Jack Rice, Bob Baer and others—all said that a criminal investigation was a good idea. The official spokesman of the CIA torture team remains, as for the last seven years, David Ignatius.

[...]

4. All trails lead to the Vice President’s office. At several points, redactions begin just when the discussion is headed toward the supervision or direction of the program and context suggests that some figure far up the Washington food chain is intervening. Moreover, as Jane Mayer recounts in Dark Side, Helgerson’s report was shut down when he was summoned, twice, to meet with Dick Cheney, who insisted that the report be stopped. Cheney had good reason to be concerned. This report shows that the vice president intervened directly in the process and ensured that the program was implemented. The OPR report likewise shows Cheney’s office commissioning the torture memos and carefully supervising the process. It is increasingly clear that torture was Dick Cheney’s special project and that he was personally and deeply involved in it. And the CIA report has some amazing nuggets that show Cheney’s hand. In 2003, after Jay Bybee departed OLC, Cheney struggled to have John Yoo installed as his successor, but ultimately John Ashcroft’s candidate, Jack Goldsmith, prevailed. Goldsmith quickly backtracked on the torture authorizations that Yoo and Bybee gave. The result? The CIA stopped taking its cue from OLC and instead turned to the White House for guidance. It is remarkably vague on the particulars, and blackouts emerge just as passages seem to be getting interesting. But there’s little doubt that Dick Cheney and his staff were pushing the process from behind the scenes.

Bush Administration Pressured Interrogators to Elicit False Confessions Through Torture

McClatchy Newspapers are reporting that the Bush Administration applied "relentless pressure" on interrogators to apply "harsh techniques" on detainees in order to obtain information that would connect Al Qaeda to Saddam Hussein. It was during this time period that Khalid Sheik Muhammed was waterboarded 183 times and Abu Zubaydah was waterboarded 83 times in a month.

McClatchy quotes a former Senior U.S. Intelligence official in the article:

"There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued.
"Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."

In addition, the Senate Armed Services Committee has released a 232 page report that discusses details on the treatment of detainees and the approval of said techniques by the Bush Administration. From the Washington Post:

The military's Joint Personnel Recovery Agency (JPRA) has been reported to have reverse-engineered these methods to break al-Qaeda prisoners. The techniques, including waterboarding, or simulated drowning, were drawn from the methods used by Chinese Communists to coerce confessions from U.S. soldiers during the Korean War -- a lineage that one instructor appeared to readily acknowledge.

So, it becomes increasingly clear that the Bush Administration used torture techniques on individuals that were reversed engineered from the military's SERE program in order to elicit (false) confessions from detainees in U.S. custody and then retroactively attempted to provide legal cover for themselves via the torture memos. Astonishing that we would even consider NOT moving forward with a special prosecutor. Chris Floyd:

What's more, it is now undeniable that they began this program long before they had captured even one "high-profile al Qaeda detainee," and that they were using these heinous techniques not in a desperate bid to save the nation from further attacks – which has long been their preening, self-serving claim – but instead to produce spurious data about the non-existent link between Iraq and al Qaeda. In other words, George Bush, Dick Cheney and Donald Rumsfeld ordered their minions to beat and torment captives in order to get them to say something a – anything – that could then be used to "justify" a war of aggression that these grand statesmen had been planning long before the September 11 attacks.

You cannot disentangle the torture program from the war of aggression in Iraq – nor from the illegal wiretapping program, the corrupt war profiteering, and all the other degradations of liberty and law that have been so accelerated in the past eight years. They are all of a piece, part and parcel of a plan to expand and entrench America's "unipolar domination" of world affairs with a thoroughly militarized state led by an unaccountable, authoritarian "Unitary Executive."

More on Torture

Over the weekend I read the majority of the four torture memos that were released last week and will finish them at some point today. There have been a lot of good analysis and important reaction coming out and I while I will write my own this week, it is important to keep the conversation going.

Over the weekend we learned that Khalid Sheikh Mohammed (KSM) was waterboarded 183 times in March, 2003 by the CIA and that Abu Zubaydah was waterboarded 83 times in August, 2002. At the blogger emptywheel pointed out:

So: two two-hour sessions a day, with six applications of the waterboard each = 12 applications in a day. Though to get up to the permitted 12 minutes of waterboarding in a day (with each use of the waterboard limited to 40 seconds), you'd need 18 applications in a day. Assuming you use the larger 18 applications in one 24-hour period, and do 18 applications on five days within a month, you've waterboarded 90 times--still just half of what they did to KSM.

The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM.

That doesn't sound very effective to me.

The figures that emptywheel used above, came directly out of the torture memos dictating how waterboarding was to be implemented. As Andrew Sullivan points out:

Moreover, it is worth pointing out that even if you accept the preposterous notion that waterboarding isn't torture - something no legal authority in human history ever has before Dick Cheney came along - and even if you accept the amazingly detailed limits that Bradbury placed on the frequency and severity of waterboarding to make it "legal," even then, we now know that the CIA violated those standards.

[...]

So even by the Bush-Cheney standards of legality, the waterboarders far exceeded what was allowed. They broke the law even by Bush's standards. And why, pray, is breaking the law in such a grave matter as a war crime no longer subject to prosecution or even investigation in the United States?

More to come on all of this. Meanwhile, the Daily Show takes on torture apologists:

The Daily Show With Jon Stewart	M - Th 11p / 10c
We Don't Torture
thedailyshow.com
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Rep. Nadler (D-NY) Calls for an Investigation of Bush Administration Officials

Rep. Jerrold Nadler (D-NY) has written a letter to Attorney General Michael Mukasey urging him to appoint an independent council to investigate actions taken by Vice President Dick Cheney, Former Secretary of Defense Donald Rumsfeld, and other senior level administration officials in regard to the torture of prisoners in U.S. custody. Rep. Nadler cites Vice President Cheney's recent interview with ABC News and Cheney's frank admission to directly approving the waterboarding of Khalid Sheikh Mohammad as evidence of the Administration's participation in approving tactics that are against the law. Rep. Nadler states in his letter:

The Vice President’s public admission that he was “aware of the program,
certainly, and involved in helping get the process cleared” is deeply
disturbing. It implicates the Vice President in this activity which appears to
have been a direct violation of our criminal laws against the use of
torture. Similarly, a recent report issued by the Senate Armed Services Committee
found that “Secretary of Defense Donald Rumsfeld’s authorization of aggressive
interrogation techniques for use at Guantanamo Bay was a direct cause of
detainee abuse there.”[7] Additional evidence shows that other top officials
also were involved in authorizing similar activities.

Not only did Cheney admit to his role in approving such policies as stated above, but, as Nadler points out, the Senate Armed Services Committee recently issued a report that found Administration officials directly responsible for the abuse of detainees in U.S. custody. I recently wrote about this bi-partisan report and will reemphasize that this report is damning evidence that the Administration not only approved policies of torture, but lied about it when the abuses at Abu Ghraib were exposed.

In addition to Nadler's letter, he appeared this morning on Democracy Now! and emphasized some very basic points that I, and others, have been making:

And the morality of this aside, you cannot have high officials deliberately
break the law without accountability. The Vice President, on that interview we
saw a few minutes ago, talked about the oath of office that the President, the
Vice President, others take, and that is to preserve, protect and defend the
Constitution of the United States. You are not preserving it, and you are not
defending it; you are, in fact, perverting it, if you deliberately break the
law, which is the supreme law of the land pursuant to the Constitution. It is
imperative, if the United States is to remain a country of laws and not men,
that people who break the laws be held accountable.

This is very important and very fundamental to the operation of the United States. This country is a country of laws and not men, or in other words, no one should be above the law. When it continues to become increasingly clear that elected officials at the highest levels of government have committed serious crimes, there should be no reason why an independent panel shouldn't look into said crimes. As I have also written about in recent days, a distinction must also be made between political accountability and accountability to the law. Nadler touches on this point in his interview:

...there are things that it is imperative that the Obama administration,
when it takes office, and the Congress, in January, take steps to hold officials
accountable for violations of law, and really, not because we want vengeance and
not because we want to be vindictive of what happened, but because holding
people to the law and making them go through a legal process of proving guilt or
innocence is the only way that you can minimize the likelihood of recurrence of
law breaking and maintain the United States as a democratic country.

Those who often raise the argument that we should "move on to unite the country" and "not hold political grudges" are wrongly applying their formula for political accountability into the realm of criminal accountability. When laws are broken, there is a need for investigations and charges to be brought that apply to the crimes committed. It does not make any sense, or deter future political leaders from lawbreaking, if we chalk up the violation of laws to "political disagreements" or "political difference". This is the same disparity that I wrote about in discussing the response of some in Politico's "Arena" forum recently. I will revisit Maurice Carroll's response to reiterate the point:

Is it a good idea for a new administration to look for prosecutable crimes
by the old administration? Even if their opinion is that there WERE crimes? By
and large, the answer is no. Even if the true believers (and the true-believer
editorial writers) are pestering the Obama administration to do it. One of the
strengths of the American political system is that it's not a blood sport. We
disagree without looking to put the other guys in jail. Which is a longish way
of saying: There'll be a new slate. Shouldn't we wipe the old slate clean?

Carroll is not alone in this viewpoint, a viewpoint that encourages us not to investigate an outgoing administration EVEN IF there is a belief that crimes WERE committed. Carroll justifies this viewpoint by stating that "we disagree without looking to put the other guys in jail" and that this is "one of the strengths of the American political system." This is an absurd statement that equates political difference with accountability to laws and sadly, it is this narrative that is often repeated the loudest during these recent discussions about investigation of Bush Administration Officials. It mischaracterizes the argument of those who are calling for accountability to the rule of law into an argument being put forth by mere political opponents.

Rep. Nadler is not the first who has called for the investigation of Bush Administration officials for lawbreaking and he is certain to not be the last. There have been some rumors that President Bush has plans to pre-pardon members of his Administration before January 20 to avoid potential prosecution, but at this point it remains to be seen if an Obama Administration would put forth such an investigation. There is certain to be more on this issue between now and Inauguration Day.

This article can also be found at: http://www.cincinnatibeacon.com