Gitmo Hearings Long Outed as Farce

Despite front-page coverage in The New York Times, it is not exactly news that our military officials at Guantanamo Bay, Cuba employed flawed and biased screening processes to classify terror suspects down there. We have known for at least one year about the surreal nature of our government's "due process" offered to detainees thanks to a devastating report by a brilliant and dogged father and son lawyer team that studied the raw transcripts of the Combatant Status Review Tribunals.

We have long known, therefore, that military officials, to use the words of William Glaberson in this morning's Times, "relied on incomplete and outdated information" and that they were "under intense pressure from their commanders to conclude that the detainees should be held." The only bit of news here is that one of the officials who participated in these kangaroo courts finally had the courage and the integrity to step forward and speak out about a "haphazard and arbitrary" practice that surely is beneath us as a nation. Will this round of stories be enough to finally get the White House to close Gitmo? Who knows. The more important question is: will this information help convince Congress and the federal courts, including the Supreme Court, that the executive branch simply is incapable in this instance of following its legal obligations.

The reserve officer, Stephen E. Abraham, told the Times that "in very few instances would you find very specific information from which you could conclude he was an enemy combatant." Unfortunately, this stubborn fact did not preclude our military, in our name, from classifying as combatants hundreds of men, including hundreds who never fired a shot in anger at the US or otherwise were linked to Al Qaeda. And, of course, that classification has meant years and years of detention for those men. News? Hardly. Abraham is merely confirming and giving a face to the narrative that has been out there, for all to see, since the first days of the second term of the Bush Administration.

I wrote about this ghastly practice in January 2005 in a case involving a man named Mustafa Ait Idr, whose case somehow made it to a federal court. Here is what I wrote: "The presiding tribunal officer accuses Idr of associating 'with a known Al Qaeda operative.' The detainee says, reasonably enough: 'Give me his name.' The tribunal president says: 'I do not know.' Idr understandably asks: 'How can I respond to this?' The tribunal president asks: 'Did you know of anybody that was a member of al Qaeda?' Idr says: 'No, no ...' And then Idr went to the heart of the constitutional problem, as Judge Green sees it, with an evaluation that the judge described as 'piercingly accurate.'

'This is something the interrogators told me a long while ago,' Idr complains during his so-called trial. 'I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.' The tribunal president then responds, presumably with a straight face: 'We are asking you the question and we need you to respond to what is on the unclassified summary.'"

This is your war on terror. This is your due process. This is your government.

By Andrew Cohen |  June 23, 2007; 9:48 AM ET
Previous: The Vice President Wages 'Lawfare' | Next: Un-Mighty Gonzo at the Bat

Comments

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Sadly, it has taken so many years, five maybe, to report on this insult to democracy. How has the Post sanctioned this secretive government and its water carriers knowing that this atrocity has been going on? How is anyone in this administration given credibility in light of what we all know about torture, extraordinary renditions and outright miscarriages of justice, not to mention complete destruction of the Constitution?

Posted by: Robert Thair | June 23, 2007 11:16 AM

Modern journalism: "Reserve officer claims prisonors are held at Guantanamo Bay on flimisy to nonexistent evidence. Administration officials deny it."

That's it, essentially. Then time for the modern journalists to get back to the elegant cocktail parties to rub elbows with the movers and shakers, and then next morning check the incoming fax for the daily Republican talking points from Karl Rove.

The blood of thousands of our sons and daughters are on the hands of the Administration, and also on the hands of all these alleged "journalists" and plump TV talking heads who are complicit in keeping this horror show running. Not to mention the 29 percent of the American people who think it's all OK.


Posted by: John Palcewski | June 23, 2007 11:35 AM

The greatest ugliness of this ugly affair is why it continues: despite its unequivocal harm to every American interest, it continues. Because to close it down would be viewed in some paranoid quarters as a concession, as a win for "liberals," and the same 26% who cheered the defeat of science in Bush's latest veto wouldn't like it.

Domestic and foreign policy in the USA are now based on pleasing the stupidest and nastiest and most undemocratic people in the USA.

But hey .. that's the leadership of this administration.

Color me disgusted. -- Chris Fox

Posted by: Chris Fox | June 23, 2007 12:55 PM

Right you are, Palcewski! It's too damn bad that modern reporting is content to give a lie equal balance with the truth, without any effort to tell what's really going on. Oh, but calling a liar what he is would be "biased." I think this lick-spittle approach is one of the reasons why circulation and viewership of mainstream media is falling, and readership of admittedly biased, but ultimately truthful, blogs like Cohen's is rising.

As for the sham of Gitmo "justice," the rest of the world knows it better than most Americans. In Australia, the population has been consumed with the injustice done to David Hicks, a wanna-be Muslim "freedom fighter" who was locked up without charge for five years. He started out being as despised as John Walker Lindh, but slowly morphed into a national symbol of suffering when the details of his unfair treatment came out. The fact that he could be sprung in a political deal to ease electoral pressure on John Howard before this year's parliamentary vote only underlined the ludicrousness of it. As the token Yank where I work, I have a lotta 'splainin (and apologising) to do because of crap like that.

Many other Western nationas also have a citizen or two deep-sixed in Guantanamo. These people get more media attention in their home countries than Gitmo as a whole does in the U.S., and it builds hatred of America. It used to be that just the U.S. government was despised, but with all the mass murders, religious wack-jobbery and other social flaws, it's "brand America" that's reeking, not just "government America."

Posted by: Bukko in Australia | June 23, 2007 01:02 PM

Hey American Lawyer -- I'll respond. How many? Please enlighten us. Specifics, though, if you would be so kind. Names, dates, countries, what they've been charged with...

And please exclude those unlucky wretches who have been released from Guantanamo because there was not enough evidence to keep them in the U.S. system, but were still slammed into prison without charges in dictatorships like Pakistan, just as a favour to the U.S.

I have no doubt you're a fount of information!

Posted by: Bukko in Australia | June 23, 2007 01:14 PM

"Tears, tears, tears for poor, innocent, misunderstood, wrong-place-wrong-time Al Qaeda operatives."

The problem is that most of them are not "al Qaeda operatives. Most of the people at Gitmo were sold to the US for $5,000 by war lords and even by neighbors. If these people are guilty of crimes, then why have none of them been brought up on charges. I guess you missed the part of this article that said:

"in very few instances would you find very specific information from which you could conclude he was an enemy combatant."

I assume that you conclude that a war lord or a neighbor would not have sold these people to the United States for $5,000 unless they were actually al Qaeda.

You, sir are a dunderhead and need to take a course in critical thinking. I'm sure they offer one at your local Junior College.

Posted by: Katie | June 23, 2007 03:43 PM

I'm beginning to understand why it took regular citizens of Germany and Italy to come to terms with the horrific acts attributed to the Nazi and Facist regimes. I'm beginning to understand that the feelings of shame don't surface until we get past the denial that lets us believe it was unnamed government officials acting in secret that committed the atrocities...surely not regular citizens...like us.

But we DO know what is going on in the name under the authority of our government! We may not have a clear picture, but the press has told us, and we have friends and family members involved in the military and foreign service actions. Hoewver, it's easier to be distracted by countercharges and placated by the denials. It's normal...but not right. Adolph Hitler didn't exterminate non-Arians by himself...good churchgoing citizens staffed the camps, military personnel had families & friends who knew what was going on...but nobody wanted to believe it, or had the courage and heart to stand up to the propaganda.

We regular citizens are responsible for demanding clarification when we get conflicting reports. Our Congress and the Courts must meet their constitutional mandates to provide checks and balances. If we don't demand to see and hear have conflicting propaganda and stories clarified, we are as responsible as those who act in our name.

Please, call your representatives and talk to your friends, write the media. Ask people to demand consequential investigations into these allegations of misdeeds done in the name of our country! If we want to convince GWB that it's our country, not his, we need to make sure we speak up and make sure our system works!

Posted by: las100 | June 23, 2007 04:40 PM

Thanks Mr. Cohen for continuing to shine a light on this Administration's assault upon decency and the Constitution.

The future will harshly judge all who let this perfidy occur. It wil honor those who stood tall amidst the storm.

-- Stanley Krute

Posted by: Stanley Krute | June 23, 2007 10:42 PM

*History repeats itself -- the first time as tragedy, the second time as farce.* Marx

[Karl. Why, did you think it was Groucho that said that?]

Posted by: oldhonky | June 23, 2007 10:52 PM

Reporterr: I suggest you get a life, scammer!

Posted by: Tom | June 24, 2007 12:52 AM

Josh Morey: We are all so happy for you!!! Now go back to disseminating spam and leave us all alone, loser!

Posted by: Tom | June 24, 2007 12:55 AM

Dear American Lawyer;

Nobody cries for Al-Qaeda operatives. We cry for justice. Since you seem to be unfamiliar with this concept despite your putative training in the law, let me make it simple. Justice means punishing the guilty and setting the innocent free.

Has anybody else out there noticed that people who include "American" and "Patriot" in their name seem to wrap themselves in the flag because they have no other notable qualities?

Posted by: lowhangingmissiles | June 24, 2007 12:56 AM

When did this board become and advertising forum for the sleazeballs?

Posted by: Tom | June 24, 2007 12:56 AM

"The true civilization is where every man gives to every other every right that he claims for himself."
- Robert G Ingersoll (1833-1899)
I always believed that the U.S. stood, in principle, for the highest ideals of 'civilization', now it seems America is just another scummy proto-fascist state, up there with Mussolini, Franco Kim Il-Jong and Papa Doc, power hungry idiots convinced of their divine rightness to rule, regardless of the consequences. It's a shame that when the constitution was written noone thought to add the line - "He who should seek high office will cause his immediate exclusion from high office" (BTW, I didn't include Hitler in the above list, cos he was in a different class, one I don't believe America is even close to.)

Posted by: Laurie | June 24, 2007 05:28 AM

Krass, was hier passiert ist: Wer hat auch so einen Fall erlebt?
Kenne den zwar nicht, aber so was ist hart zu lesen. Da
wurde sogar ein Lamborghini in Ketten gelegt. Irre.

[url=http://www.verhaftet.de] Staatsanwaltschaft_Frankfurt [/url]

Posted by: Verhaftet | June 24, 2007 07:26 AM

Unfortunately, the current focus on whether Guantanamo's detention facility should be closed is obscuring the fact that it is what goes on there, not merely the location, that is so objectionable.

Moving it to Afghanistan, as has been discussed, or elsewhere, will solve nothing if these sham processes continue.

What is sad is that, properly applied, the idea of holding hostile forces as "enemy combatants" -- that is, as POW's, rather than as criminals -- is not necessarily flawed. But the administration has never made a good faith effort to come to grips with the two main challenges to this approach in the "war" with Islamic fascists: (1) How do you define an "enemy combatant" and what are the appropriate processes to determine an individual's status; and (2) if a POW is to be detained for the duration of hostilities, how do you apply that concept in a war whose end is essentially indeterminate?

Instead of making a serious effort to deal with these issues, the administration has simply engaged in lies and deceptions, and has made absurd (and dishonest) legal arguments that have enraged even conservatives judges and justices in the U.S. courts. They have manipulated the system to avoid rulings on some of their more outrageous positions (e.g., the Padilla case), and lawyers such as Alberto Gonzalez and John Yoo have laid out legal justifications that can only be called fascist: the right to detain domestically arrested US citizens indefinitely, incommunicado and without judicial supervision; the right to torture; the right to abrogate treaties, and so on.

This is, without a doubt, the most lawless and frightening administration in US history. And among its many tragedies is that they are doing for anti-terrorism what Joe McCarthy did for anti-Communism.

Posted by: Meridian | June 24, 2007 07:47 AM

It was a merciless sun that beat down on a group of figures in institutional dress; legs hobbled by chains, arms tied behind their backs - walking with bent bodies down a long fenced corridor...two guards with guns and snarling trained dogs guiding their process to a waiting interrogation room.
Looking more closely I recognize familiar faces among the chained, shuffling fetal figures...Cheney, Rumsfeld, George W., Wolfowitz and a couple others of 'the group' responsible or soon to be found responsible ( by whatever means that qualifies as acceptable torture?), for terrorizing democracy by denying the right of habeas corpus, right of privacy, due process, illegal surrveillance of citizens ; torture as a means to establish crimes against the state...all acts that have turned a once proud and just nation into a sham and its people into a state of denial; or if enlightened, unable to stop the madness.
I see these figures as victims of their own fouland devious deceptions and yet as I sigh in relief that this mad nightmare has ended..I wake up only to know it was only a dream and the nightmare spins on and on...beryl k gullsgate

Posted by: beryl k gullsgate | June 24, 2007 08:17 AM

Someone's been cleaning up these comments! As ludicrous as I find a lot of the reich-wingers such as the one who called himself "American Lawyer," I think their lunatic diatribes should be left around for others to laugh at. That's freedom of speech, and if we're going to be claiming we represent constitutional freedoms, we should practice them. Even for yutzes.

Now, the commercial spam in German is another matter...

Posted by: Bukko in Australia | June 24, 2007 09:16 AM

This one smells of hard time. Wow.

http://www.harpers.org/archive/2007/06/hbc-90000351

Posted by: wrb | June 24, 2007 02:57 PM

Some teasers re the link I posted above (Scott Horton's latest). Meat for all Gonzo/ Rove watchers

"In the meantime, however, I have spent over a month looking at this case"


"This is not a prosecution of a political figure for corruption. It is a political vendetta, conceived, developed and pursued for a corrupt purpose."

"The Siegelman prosecution was commenced as the result of a plan hatched between senior figures in the Alabama Republican Party and Karl Rove."

"
The curtain was pulled back on this plan when Dana Jill Simpson, a Republican lawyer who previously worked on a campaign against Siegelman, decided to blow the whistle. Her affidavit described William Canary, a legendary figure in the Alabama GOP, bragging that "his girls" would take care of Siegelman. Canary's wife is Leura Canary, the U.S. Attorney for the Middle District of Alabama. Alice Martin, the U.S. Attorney for the Northern District of Alabama is a close confidante of Canary's. He referred repeatedly to "Karl," assuring that "Karl" had worked things out with the Justice Department in Washington to assure a criminal investigation and prosecution of Siegelman. Canary is a close friend of Karl Rove, and I have documented their long relationship in another post.

The response to Simpson's affidavit has been a series of brusque dismissive statements - all of them unsworn - from others who figured in the discussion and the federal prosecutor in the Siegelman case, who has now made a series of demonstrably false statements concerning the matter. She's been smeared as "crazy" and as a "disgruntled contract bidder." And something nastier: after her intention to speak became known, Simpson's house was burned to the ground, and her car was driven off the road and totaled. Clearly, there are some very powerful people in Alabama who feel threatened. Her case starts to sound like a chapter out of John Grisham's book The Pelican Brief. However, those who have dismissed Simpson are in for a very rude surprise. Her affidavit stands up on every point, "

"And the more we dig into this case, the more irregularities mount. "

Posted by: wrb | June 24, 2007 06:47 PM

Stephen Abraham's affidavit is well worth reading in its entirety:
http://www.scotusblog.com/movabletype/archives/Al%20Odah%20reply%206-22-07.pdf

I would also agree with Bukko that the removal of "American Lawyers" comments are unfortunate. I can't speak to the merits of the post, because I didn't see the argument; however, I would agree with the idea that comments made on a subject should be allowed to speak for themselves on their merits--especially if they speak directly to the subject matter of the Bench Conference column.

Based on the comments provided in response to "American Lawyer"'s post, it's conceivable that he or she may have requested removal out of shear embarrassment. If that's not the case, hopefully "American Lawyer" will repost his or her thoughts on this matter.

Posted by: JP2 | June 24, 2007 09:41 PM

JP, it was a typical rightist screed about "why doesn't Cohen invite the poor, oppressed Muslim terrorists into his nice kosher home?" Managed to be both Anti-Semitic AND anti-Islamic in the same rant...

Posted by: Bukko in Australia | June 25, 2007 01:10 AM

Bukko, it figures. My guess is that "American Lawyer" didn't receive an especially high quality American education either--legal or otherwise. Certain parts of American society right now are also suffering from provincialitis. There's more to the world than what a person might learn on Fox News.

On the other side, the threat of terrorism is real enough, but you don't destroy fundamental legal principles (e.g. due process) if you understand why those legal principles exist in the first place. The reasons may not be self-evident to all American citizens. But there's no excuse for an American (U.S.) lawyer, who presumably deals with these issues to play the idiot. Citizens who have lived under authoritarian regimes might grasp the reasons for "due process" a little more intuitively.

Posted by: JP2 | June 25, 2007 03:01 AM

Glad you wrote about this stuff, Andrew? What was the response when you wrote the article in January 2005 (at the beginning of the second term)? Unspeakably, despite a point being made even at that late stage (and I thought was obvious from the beginning,but hey the powers-that-be seem to be brainwashed with some screwed up justifications derived in some way from Ayn Rand) , has there been any change in the 2 1/2 years after? Can this be as nauseating as it appears? Someone who support Guantanamo now or before, do you want to give a reason that makes sense (not that prisoners aren't subject to protections stated in American law as inalienable rights just by virtue of existence, not some perq for being a member of Club America)?

Posted by: Steve | June 25, 2007 01:28 PM

Bukko, just imagine how widely condoned by much of the world community, if Guantanamo had somehow not included any citizen of a first world nation (as if that would have changed the principle), but only "those people"!

Posted by: Frances | June 25, 2007 01:32 PM

Where is this "American Lawyer's" comment that people are responding to? Even if false and offensive (didn't see it so I don't know) maybe we should still know what it said.

Posted by: Arne | June 25, 2007 01:36 PM

Ah yes, thank you las100 for your honesty (what you say while not pleasnt to accept for some is directly a significant part of the problem). It's good to know that at least a few honest and clear-thinking people speak up; not remotely even close to enough. And if you doubt that remember the subject that Andrew's article deals with.

Posted by: Gary Richland | June 25, 2007 01:42 PM

Ah yes, thank you las100 for your honesty (what you say while not pleasnt to accept for some is directly a significant part of the problem). It's good to know that at least a few honest and clear-thinking people speak up; not remotely even close to enough. And if you doubt that, remember the subject that Andrew's article deals with.

Posted by: Gary Richland | June 25, 2007 01:42 PM

Yes Laurie, but remember, despite what Hitler directed, he isn't even competitive in the killing game with Stalin and (I think) Mao.

Posted by: Amy | June 25, 2007 01:47 PM

Meridian, that's not a problem; in this kind of revisionism ("
if the liberals can do it, why not us" attitude of the conservatives and certain rights of religion people), Mccarthy is a hero (as was Reagan for doing what he did as an actor)

Posted by: | June 25, 2007 01:50 PM

If it read as Bukko above says, it shouldn't even be dignified as right-wing. It would seem to cast everything as us versus them (as if, one is guilty once labelled; ah the righteous practicality of the insecurity of a loser); so if it is so clear that these "Moslem terrorists" are really not oppressed, and instead are known to be viciously dangerous, meaning that the evidence that they are a menace to American society is clear and demonstrable as the comment assumes, yet they can't get a trial and sentenced?

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