And The Verdict Is… Open!

Eli Lake at The Washington Times:

President Obama on Monday lifted the ban he imposed two years ago on military trials for detainees at the Guantanamo Bay prison, ending his bid to move most terrorism trials to civilian courts and pushing his already busted deadline for shuttering the island prison indefinitely forward.

The reversal came as Defense Secretary Robert M. Gates visited Afghanistan and indicated that he was willing to keep a presence of U.S. forces in the war-torn country beyond the Obama administration’s 2014 pullout goal, highlighting again the difficulty the president has had moving from the policies of President George W. Bush.

Mr. Obama announced the Guantanamo decision in an executive order that also sets forth a periodic review process for detainees who have not been charged or convicted but are still considered threats to the U.S.

White House aides stressed that Mr. Obama remains committed to closing the prison, which he has described as a key recruiting tool for terrorist groups, and pursuing some cases in civilian courts. Mr. Obama vowed during the campaign to close the prison by the end of 2009, his first year in office.

Massimo Calabresi at Swampland at Time:

All of this responds to Obama’s archives speech of May 2009, where he walked back his more progressive January 2009 position but tried to retain a bulwark of detention and prosecution principles for terrorism detainees. Since then, Congress has passed laws blocking the closure of Gitmo by preventing the transfer of detainees by the executive branch. House and Senate Republicans (McKeon and Graham) are expected to introduce bills further blocking detainee access to U.S. courts in the coming week.

On a conference call Monday, Obama senior advisors said the president remains committed to closing Gitmo by diminishing the number of detainees held there. But the moves announced today could have the opposite effect, admits a senior White House official. The Bush and Obama administrations have faced repeated habeas corpus challenges to their detention of alleged terrorists at Gitmo. Last I checked, detainees bringing habeas cases were winning by a 4-to-1 ratio. By increasing due process at Gitmo, the new measures make it more likely judges will defer to the executive branch and rule against detainees claiming they are being held unfairly at Gitmo. One administration official argued that judges would not be affected by the new procedures.

The habeas releases remain the only way that Gitmo’s numbers can decrease these days. The administration is still debating how to comply with the Congressional ban, but as long as it is in place even a detainee who uses his new due process rights to challenge his detention in military commissions and wins will stay in Gitmo forever… or until Congress changes its mind about closing it down.

Amy Davidson at The New Yorker:

Who wins in this? Do we think that “American system of justice” means whatever it is Americans do, as long as some court-like trappings are present? The order acknowledges that the “privilege of the writ of habeas corpus” is available to inmates, but also sets up a routine for holding prisoners indefinitely without charges (what the order calls “the executive branch’s continued, discretionary exercise of existing detention authority”). In statements today, Obama, Attorney General Eric Holder, and Secretary of Defense Robert Gates all mentioned how highly they thought of the federal court system. Gates said,

For years, our federal courts have proven to be a secure and effective means for bringing terrorists to justice. To completely foreclose this option is unwise and unnecessary.

So this order doesn’t “completely foreclose” on the rule of law—is a partial foreclosure supposed to count as a moral stand? Given all the nice things the Administration has to say about the federal court system, one would think that it might find it wise, and even necessary, to actually use it a bit more. Instead, the statements seem more concerned to note that the President is not giving up any options or powers—as if bringing accused murderers to court were a prerogative, rather than an obligation. No doubt, Republicans, and some Democrats, have made it hard for Obama to close Guantánamo. But it might be easier if he wanted to do it; the order today makes it sound like he considers it a somewhat useful place. It is not.

Speaking of questionable detention measures: Can someone in the Administration explain, slowly and clearly, why Bradley Manning, the soldier accused of leaking the WikiLeaks cables, is required to stand naked in front of his cell in the morning and sleep naked, ostensibly for his own protection? The military’s explanations so far—that he could somehow harm himself with underwear (though he is not on suicide watch and is being monitored by video) so he can’t sleep in any, and then there is just no time for him to put underwear on in the morning before they get him out of the cell—are just not plausible. (By coincidence, a case about Americans being strip-searched after being arrested for minor offenses may be coming before the Supreme Court.) A naked man who hasn’t been convicted of a crime—that shouldn’t be what American justice looks like.

Josh Rogin at Foreign Policy

Bryan Preston at PJ Tatler:

Only two years into his presidency, Barack Obama has learned that there are no easy answers to dealing with captured transnational terrorists. It’s easy to create sound bites decrying the evils of holding terrorists at Gitmo, and it’s easy to create sound bites about how awful it is to try them in military tribunals (even though that’s where illegal enemy combatants should rightfully be tried), but it’s very hard to change reality. So bowing to reality, Obama has authorized the re-start of military trials for captured terrorists.

John Yoo at Ricochet:

The Obama administration’s anti-war campaign rhetoric and naive first-year promises continue to collide with reality.  And happily, reality continues to prevail.  The Obama administration has finally admitted, I think, that the Bush administration’s decision to detain al Qaeda operatives and terrorists at Gitmo was sensible.  It wasn’t driven by some bizarre desire to mistreat terrorists, but instead was the best way to address security concerns without keeping them in Afghanistan or inside the United States.

It also turns out that the military commission trials too were a sensible decision.  Civilian trials threaten the revelation of valuable intelligence in a covert war where hostilities are still ongoing. Military commissions allow a fair trial to be held but one that does not blow our wartime advantages.  Meanwhile, the Obama administration’s track record has been poor — it was lucky to get the limited convictions that it has.  Obama folks owe an apology to the Bush administration for their unjust criticism of military trials.

It should also be noted that Obama did not come to this turnabout after reasoned consideration alone.  I think there are significant figures in the administration that would still love to close Gitmo tomorrow and give every terrorist the same exact trials reserved for Americans who commit garden-variety crimes.  Congress dragged the administration kicking and screaming to this destination by cutting off funds for the transfer of any detainees from Gitmo to the U.S.  This effectively used Congress’s sole power of the purse to prevent Obama from making a grievous national security mistake.  The new Congress should continue to keep the ban in its Defense spending bills to prevent Obama from another 180 degree turn.

Adam Serwer at Greg Sargent’s place:

Conservatives committed to burnishing Bush’s legacy were quick to claim vindication, arguing that the decision proved that the detention camp at Gitmo was a good idea all along. But Obama’s decision doesn’t prove this at all.

The administration also released an executive order outlining its new indefinite detention policy. Not much has changed from when I first wrote about it a few months ago — the new procedures formally adopt what Karen Greenberg referred to as “the heart of Bush policy” while making the process marginally fairer by allowing individuals detained indefinitely who have lost their habeas cases to be represented by counsel during periodic reviews every six months.

The president and the secretary of defense also reiterated the importance of trying terrorists in federal courts, but they might as well be shouting into the wind. The ban on funds for transfers of Gitmo detainees to federal court won’t be going away any time soon, but it’s worth remembering that ban actually ensures that fewer terrorists would be brought to justice than would be otherwise. Only six terrorists have ever been convicted in military commissions, compared to hundreds in federal court.

Failing to close Gitmo remains the most visible symbol of the president’s failure to reverse the trajectory of Bush-era national security policy, but the reality, as Glenn Greenwald notes this morning, is that most of the substantive decisions adopting Bush policies were made long ago. The new policies don’t amount to a “reversal” on the issue of whether Gitmo should be closed. Republicans are eager to portray Gitmo staying open as a “vindication” of the prison’s usefulness, but the fact that the indefinite detention order is limited to detainees currently at Gitmo means that the administration won’t be reopening the facility to new detainees, as Bush apologists have suggested doing.

Gitmo isn’t open because the administration doesn’t want to close it, although its efforts in this area are ripe for criticism. It’s still open because Republicans in Congress successfully frightened Democrats in Congress out of giving the administration the necessary funds to close it when they had control of Congress. In the process, they’ve managed to obscure the original reason detainees were brought to Gitmo — to keep them away from the scrutiny of the federal courts. Once the Supreme Court held that federal courts had jurisdiction and even habeas rights, the facility was useless for that purpose. Republicans are determined to keep it open not because we can’t safely imprison terrorists in the U.S., but because they feel its ongoing presence vindicates Bush in the eyes of history.

Glenn Greenwald

Memorandum, Mon Amour

Michael Isikoff at Newsweek:

A crucial CIA memo that has been cited by former Vice President Dick Cheney and other former Bush administration officials as justifying the effectiveness of waterboarding contained “plainly inaccurate information” that undermined its conclusions,  according to Justice Department investigators.

Cheney has publicly called for the release of the CIA’s still classified memo and another document, insisting their disclosure will bolster his claim that the rough interrogation tactics he vigorously pushed for while in the White House yielded actionable intelligence that foiled terrorist plots against the United States.

But a just released report by the Justice Department’s Office of Professional Responsibility into the lawyers who approved the CIA’s interrogation program could prove awkward for Cheney and his supporters. The report provides new information about the contents of one of the never released agency memos, concluding that it significantly misstated the timing of the capture of one Al Qaeda suspect in order to make a claim that seems to have been patently false.

[…]

The CIA memo, called the Effectiveness Memo, was especially important because it was relied on by  Steven G. Bradbury, then the Justice Department’s acting chief of the Office of Legal Counsel, to write memos in 2005 and 2007 giving the agency additional legal approvals to continue its program of “Enhanced Interrogation Techniques.”  The memo reviewed the results of the use of EITs – which included waterboarding, sleep deprivation, and forced nudity – mainly against two suspects” Abu Zubaydah and Khalid Sheikh Mohammed, the report states.  One key claim in the agency memo was that the use of the CIA’s enhanced interrogations of Zubaydah led to the capture of suspected “dirty bomb’ plotter Jose Padilla.   “Abu Zubaydah provided significant information on two operatives, Jose Padilla and Binyam Mohammed, who planned to build and detonate a ‘dirty bomb’ in the Washington DC area,” the CIA memo stated, according to the OPR report. “Zubaydah’s reporting led to the arrest of Padilla on his arrival in Chicago in May 2003 [sic].”

But as the Justice report points out, this was wrong.   “In fact, Padilla was arrested in May 2002, not 2003 … The information ‘[leading] to the arrest of Padilla’ could not have been obtained through the authorized use of EITs.” (The use of enhanced interrogations was not authorized until Aug. 1, 2002 and Zubaydah was not waterboarded until later that month.) “ Yet Bradbury relied upon this plainly inaccurate information” in two OLC memos that contained direct citations from the CIA Effectiveness Memo about the interrogations of Zubaydah, the Justice report states.

Jason Linkins at Huffington Post:

Over at the Plum Line, Greg Sargent says, “This also appears to vindicate claims by former FBI interrogator Ali Soufan, who said he obtained all the crucial info from Zubaydah through non-enhanced methods.” It also appears to be bad news for Marc Thiessen, as well.

But there are complications: what if the information was obtained through the unauthorized use of torture? Let’s recall that in my conversation with Abu Zubaydah attorney Brent Mickum, he contended that his client was subjected to torture in the period between his original capture and the CIA receiving guidance from Jay Bybee.

UPDATE: As a reminder, the International Committee of the Red Cross reports that a wide variety of torture techniques were used on Abu Zubaydah, and others. In that report, Zubaydah told interviewers that he was subjected to waterboarding, and that it caused “considerable pain” because he had “undergone surgery three months earlier.” It’s frustratingly inspecific, but Abu Zubaydah is known to have been operated on soon after his capture on March 28, 2002, and Bybee didn’t advise C.I.A. interrogators until July 24th of the same year.

James Fallows:

The OPR report: this era’s ‘Hiroshima’

[…]

If you want to argue that “whatever” happened in the “war on terror” was necessary because of the magnitude and novelty of the threat, then you had better be willing to face what the “whatever” entailed. Which is what this report brings out. And if you believe — as I do, and have argued through the years — that what happened included excessive, abusive, lawless, immoral, and self-defeating acts done wrongly in the name of American “security,” then this is a basic text as well.

To conclude the logical sequence, if not to resolve this issue (which will be debated past the time any of us are around), you should then read the recent memo by David Margolis, of the Justice Department, overruling the OPR’s recommendation that Yoo and Bybee should be punished further. It is available as a 69-page PDF here. Margolis is a widely-esteemed voice of probity and professional excellence inside the Department. What is most striking to me as a lay reader is how much of his argument rests not on strictly legal judgments but rather on a historical/political assertion.

The assertion is that in the immediate aftermath of 9/11, anxiety was so high, fears were so great, and standards of all sorts were so clearly in abeyance, that normal rules about prudence and arm’s-length deliberation cannot fairly be applied in retrospect. Ie, “you had to be there.” Perhaps. (And, of course, we all were there.) In normal life we recognize the concept of decisions made in the heat of the moment, under time pressure, and without complete info. But it is worth noting that the central “torture memos” were from mid-summer 2002, nine months after the initial attacks — by people whose job was supposed to be providing beyond heat-of-the-moment counsel.

The “torture years” are now an indelible part of our history. The names Bybee and Yoo will always be associated with these policies. Whether you view them as patriots willing to do the dirty work of defending the nation — the Dick Cheney view, the 24 view, which equates the torture memos with Abraham Lincoln’s imposition of martial law — or view them as damaging America’s moral standing in ways that will take years to repair (my view), you owe it to yourself to read these original documents. I tried to make this point in more halting real-time fashion yesterday in a talk with Guy Raz on NPR.

Bill Burck and Dana Perino at The Corner:

On February 19, Attorney General Eric Holder took part in the time-honored Washington tradition of dumping undesired news on Friday afternoons or evenings. After weeks of leaks, the Justice Department officially exonerated Bush-era lawyers John Yoo and Jay Bybee, the authors of the original legal opinions on the lawfulness of the CIA interrogation program, which are known pejoratively as the “torture memos” to critics.

This is bad news for Holder and certain other Obama appointees at Justice — it undermines the story they’ve been telling for years that the lawyers who found the CIA program lawful were sadistic criminals committed to torturing poor souls such as Khalid Sheik Muhammad — but it is a vindication of an important principle that, prior to the Holder reign, had been adhered to across administrations: honestly held legal and policy opinions are not cause for prosecution or professional discipline.

For years now this principle has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It’s not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela — at least not yet; we should not rest easy.

This was a very narrow escape that came down to the brave decision of a long-time career official at Justice named David Margolis. Margolis is a widely respected 40-year veteran who has been tasked over the years with handling many of the more sensitive internal inquiries at the Justice Department. One of his responsibilities — which he has performed honorably for a number of different attorneys general in Democratic and Republican administrations — has been to oversee inquiries conducted by lawyers in the little-known Office of Professional Responsibility, or OPR. OPR is the office that recommended Yoo and Bybee be subject to disciplinary proceedings. Margolis rejected OPR’s recommendation and most of its analysis.

OPR is the equivalent of internal affairs at a police department, conducting inquiries of alleged misconduct by Justice Department lawyers and other staff and making disciplinary recommendations. OPR has an important role to play to ensure that misconduct is discovered and punished. But OPR’s investigation of the legal advice provided by Yoo and Bybee was, by its own admission, extremely unusual.

OPR annointed itself to review the constitutional and legal analysis of Bybee and Yoo while they were leading the Office of Legal Counsel, or OLC. Along with the Solicitor General’s Office — which, among other things, represents the federal government in cases before the Supreme Court — OLC employs the Justice Department’s best lawyers on the most difficult constitutional and legal issues. OLC is tasked with providing legal advice to the entire federal government, including the White House.

We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office. As Andy McCarthy has said, “having OPR grade the scholarship of OLC is like having the Double-A batting coach critique Derek Jeter’s swing.”

Sonny Bunch at Doublethink:

The case against Yoo and Bybee was always about criminalizing policy differences. Sure, it was talked about in heated rhetoric — War crimes!! Torture!! Crushed testicles!! — but the simple fact of the matter is that John Yoo was asked to render an opinion on the legal questions at hand, not to make policy or carry out that policy. Making the rendering of an honest opinion illegal strikes me as an incredibly pernicious attack on the independence of those working in the government.

Scott Horton at Harper’s:

As released, the OPR report is heavily redacted. No explanation is provided for the redactions, but the original contains a “top secret” classification, and it is likely that executive privilege, attorney-client privilege, and national security classifications figure in the decisions. Nevertheless, placement and circumstance suggest that a large number of redactions describe in detail meetings and discussions between the White House, the CIA, and the OLC lawyers working on the report.

Considering President Obama’s decision to terminate torture programs authorized by the OLC memos, all of which had already been rescinded before President Bush left office, it is not apparent how national security requires these communications to be kept secret. Far more likely, the redactions have been made to protect political figures at the White House and CIA, and potentially other agencies, from embarrassment. This is not a legitimate reason to black out the text.

A good example of potentially illegitimate redactions are those concerning repeated discussions about drafting the torture memoranda, which involve an unnamed OLC lawyer in addition to John Yoo and Jay Bybee. On p. 258, we learn that this lawyer “was a relatively inexperienced attorney when the Bybee and Yoo memos were being drafted. Although she appears to have made errors of research and analysis in drafting portions of the Bybee and Yoo memos, her work was subject to Yoo’s and Bybee’s review and approval. We therefore conclude that she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.” One woman working directly with John Yoo at OLC at this time was Jennifer Koester Hardy, now a partner in the Washington office of Kirkland & Ellis LLP. In an apparent redaction oversight, Hardy is mentioned by name in a footnote.

Why was Hardy’s name redacted? She played an obvious and important role in the production of the documents. She made serious errors, which appear to be driven less by flaws in research than by a desire to produce an opinion that had the conclusions that David Addington wanted. The failure to identify key precedents and the malicious misconstruction of precedent is as much her fault as that of Bybee and Yoo. Hardy is also an ideological fellow traveler of Yoo’s and Bybee’s. In the midst of her work at the Justice Department, she took time off to serve as a clerk for Justice Clarence Thomas, with whom John Yoo also clerked. Moreover, while she was clerking for Thomas, he authored opinions relating to detentions policy matters on which Hardy was plainly engaged at the Justice Department. Like Bybee, Yoo and Thomas, Hardy is also active in the Federalist Society. Finally, her connection with the law firm of Kirkland & Ellis is important for several reasons. Mark Filip, who worked aggressively to derail or block the OPR report, and whose highly partisan engagement on the matter is disclosed in several of the documents disclosed on Friday, departed the Justice Department to become Ms. Hardy’s partner at Kirkland. It’s certainly possible that he was engaged in discussions with Kirkland in late January 2009, when he issued his opinion about the OPR report. The Kirkland firm has emerged as a distinctly Republican powerhouse, heavily populated with the party’s neoconservative wing, such as Jay Lefkowitz, Ken Starr, John Bolton, and Michael Garcia.

So why would Hardy’s name be redacted? Disclosure of her name might get in the way of a future political appointment. It might also lead to a review by a local bar association of her involvement with the torture memos, something which Margolis is keen to obstruct.

Emily Bazelon at Double X:

The lawyer who helped John Yoo write the August 2002 torture memos was a law school classmate of mine at Yale. Her name is Jennifer Koester Hardy (when I knew her, it was Jennifer Koester; she has since gotten married). Her name was supposed to be redacted from the Justice Department ethics investigation into Yoo and Jay Bybee, his boss in the Bush Office of Legal Counsel. But a footnote identifies her, as TPM Muckraker tells us. She also co-wrote a law review article with Yoo. And in a July 2002 letter to CIA counsel John Rizzo, about what is necessary to establish torture as a crime, Yoo tells Rizzo to direct questions to him or to Koester.

After she worked with Yoo in 2002, Jen clerked for Clarence Thomas—she was his third Yale clerk, according to this list. Then I think she went back to the Justice Department. Now she’s a lawyer at Kirkland & Ellis. In law school, she was hugely involved with the Federalist Society. I remember her as a religious Christian. Also as principled in her beliefs—thoughtful rather than knee-jerk. She had a lot of friends, many of whose politics she didn’t share. We graduated in 2000, before 9/11 put terrorism and national security on the radar and I don’t remember talking to her about anything related (nor do the classmates I talked to about her today). What we do remember is that Jen was a lot of fun. She helped mock the faculty in the end-of-year Law Revue spoof. She was talkative and smiled a lot. The DoJ investigators from the Office of Legal Counsel conclude that because she was inexperienced when she worked with Yoo, “she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.”

Emptywheel at Firedoglake

Adam Serwer at Coates place:

The theological justification for al Qaeda’s wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, “The Compendium of the Pursuit of Divine Knowledge,” that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.

The legal memos justifying torture aren’t very different in terms of reasoning–it’s clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism. They worked backwards from this conclusion, and ethics officials at the Department of Justice, we now know, decided that they they had violated professional standards in doing so. Whereas al-Zawahiri and bin Laden turned to al-Sharif for a method to circumvent the plain language of the Koran, Bush and Cheney went to Yoo and Jay Bybee to circumvent the plain language of the law. Most Islamic scholars, just like most legal experts, reject their respective reasoning as unsound.

The torture memos–indeed, all of the pro-torture arguments rest on a similar intellectual themes to the takfiris. Suspected terrorists are “illegal enemy combatants”, outside the framework of laws that would otherwise guide us. Just as the takfiris justify the killing of even self-identified Muslims by excommunicating them as “infidels”, torture apologists argue that even American citizens like Jose Padilla who are accused of being terrorists become legal “apostates” without any rights the president is bound to respect. These are extraordinary circumstances, this is an extraordinary war–and so, the Bush administration turned to Yoo, a man who believes the president is bound by no laws during wartime: he can murder a village of innocent civilian non-combatants just as surely as he can crush the testicles of a child or deploy the military against residents of the United States. The architects of torture are the intellectual mirror image of their declared enemies, depending on the perceived inhumanity of their foes to justify monstrous actions. It’s worth noting however, that the Bush administration did not take full advantage of the wrongs that the lawyers in their Office of Legal Counsel would have enabled. My point is not to equate the deeds of AQ with the deeds of the Bush administration–merely to point out justification for acts that are on their face unjustifiable take a similar intellectual path.

UPDATE: Emptywheel

New York Times

Scott Horton at Harper’s

Daphne Eviatar

UPDATE #2: John Yoo at The Philly Inquirer