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Cost of the War in Iraq
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Thursday, April 29, 2004

Embargo vs. War 


The following question was posed to me today in an email from someone dear to me:

"I am reminded that before the current war in Iraq, certain groups were railing against the embargo on Iraq, saying 5,000 Iraqi children were dying each month. I presume that some 60,000 children have been saved this past year. Is that a good thing or a bad thing?"

I responded hastily, challenging the unstated premise of the question that stopping the embargo by going to war helped save 60,000 Iraqi children. I have reflected further on the issue, and have some additional thoughts to share.

First, I do not quibble with the estimate of the number of children who died as a result of the shortages caused by the embargo against Iraq. If you want to read more, take a look here.

Second, what I found so strange about the question was its black and white posture. Obviously, saving 60,000 children's lives is a good thing. But has the end of sanctions brought on by war actually saved 60,000 children who would have otherwise died as a result of the sanctions? The method by which the embargo was terminated itself has significant human costs, and therefore, it is overly simplistic to conclude that the embargo's end had the net benefit of 60,000 lives saved.

It reminds me of the joke about the economist on the deserted island with a sealed can as his sole possession. He says he can open the can easily by first assuming he has a can opener.

The other unstated principle the question embodied was one most recently used by the Bush administration and other supporters of the invasion that it was the right thing to do for humanitarian reasons. I do not doubt there are times when military action might be necessary for humanitarian reasons. But there should be some standards to assess whether military action is indeed the appropriate response. What those standards are and whether a particular situation meets them is something that must be subject to public debate because of their importance to the nation.

The Bush administration did nothing but launch marketing slogans about terror and WMD and how invading Iraq was necessary because its leader was such a threat to Americans. We heard no real justification or debate about the humanitarian aspect of the invasion until later.

Thinking about the lack of any real pre-war debate about the invasion being grounded on humanitarian concerns led me to think about the way in which this war and occupation has been executed. Let's just say that the administration could have done a much better job thinking about and planning for the aftermath. More importantly, the Bush administration is violating international humanitarian law with its detention policies both here and abroad. Some of what is happening to both Iraqi and US citizens happened to Iraqi citizens under Saddam, namely indefinite detention at the discretion of the executive without opportunity for independent judicial review.

So even if the invasion of Iraq could be justified on humanitarian grounds, and I think that is doubtful -- and so does Human Rights Watch who has standards for humanitarian invasions -- the manner in which the Bush administration has chosen to execute it falls short of humanitarian ideals.

All that aside, it is important to remember that our government's actions have created a situation that has put thousands of civilians in jeopardy. We therefore have a responsibility to do what it takes to leave them better off than we found them. In no way will that excuse the hardship to the citizens of this country that Bush's decision has caused. Although we have a responsibility to do no further harm in Iraq, we can do so under leadership other than Mr. Bush's.



Wednesday, April 28, 2004

Solicitor Olson: Send in the Deputy! 


Deputy US Solicitor General Paul Clement should argue the government's cases before the US Supreme Court instead of Solicitor Olson. He wowed me in his argument in Rumsfeld v. Padilla today.

Click here if you want to hear some outstanding oral advocacy.

I still don't agree with the positions Clement advocated, but he is one darn good appellate lawyer.

Tuesday, April 27, 2004

Why Won't the President and Vice President Testify Under Oath? 


President Bush and Vice President Cheney are scheduled to testify privately before the so-called 911 Commission, but neither official will be under oath and no stenographer or other recording of the meeting will be permitted. When asked why they won't take oath to tell the truth to the Commission, like other witnesses, Scott McClellan, responded this way:

"Well, first of all, the President is already under oath as the President of the United States."

Seriously, that's what he said.

Why won't they take an oath to tell the truth? I can surmise from other public statements by White House officials their refusal is a matter of principle, a separation of powers issue. C'mon, taking an oath does not expand the exception they create by agreeing to testify, assuming for the sake of argument the principle on which they stand is legally supportable -- and that's a matter of considerable debate.

If taking the oath of office is tantamount to taking an oath to tell the truth fully or be subject to prosecution for perjury, it would be difficult to keep our leaders out of criminal court. Mr. McClellan's answer rings hollow.

For those who think it makes no difference, and the question about oath/no oath is much ado about nothing, you've either (1) never had to take an oath before testifying or providing information to a government body, or (2) have no problem lying. The difference is huge and should never be underestimated.

If President Bush and Vice President Cheney were truly honest and honorable men of integrity -- as they claim -- they would not hesitate to swear to their God that they will be completely truthful when answering the Commission's questions. That they won't take an oath strongly suggests that they either have something to hide and/or do not intend to be fully honest when they appear before the Commission.


Spinning out of control update 


Here's the transcript of Wolf Blitzer's interview with Karen Hughes in which she ties terrorism and 9/11 to the issue of a woman's right to choose to terminate a pregnancy. You can find the original transcript at CNN's site here.

BLITZER: There is a clear difference when it comes to abortion rights between the president and his Democratic challenger, John Kerry. In your opinion, Karen, how big of an issue will this abortion rights issue be in this campaign?

HUGHES: Well, Wolf, it's always an issue. And I frankly think it's changing somewhat. I think after September 11th the American people are valuing life more and realizing that we need policies to value the dignity and worth of every life.

And President Bush has worked to say, let's be reasonable, let's work to value life, let's try to reduce the number of abortions, let's increase adoptions.

And I think those are the kind of policies that the American people can support, particularly at a time when we're facing an enemy, and really the fundamental difference between us and the terror network we fight is that we value every life. It's the founding conviction of our country, that we're endowed by our creator with certain unalienable rights, the right to life and liberty and the pursuit of happiness.

Unfortunately our enemies in the terror network, as we're seeing repeatedly in the headlines these days, don't value any life, not even the innocent and not even their own.

US Tracks Internet Blogs In Effort To Find Missing Iraqi WMDs 


Ok, just kidding.

Check out this story at Yahoo about US intelligence tracking blogs on the Internet.

Oh, and guess which other freedom loving country like the US also tracks blogs (but also tries to block them): China.

And my sister-in-law thought she was joking when she made a quip about the government reading what I'm saying here.

I'm not paranoid, but I'm sure someone's following me. ;-)

Monday, April 26, 2004

Spinning out of control 


Ok, I just caught a bit of the Wolf Blitzer interview with Karen Hughes in which they discussed the issue of abortion and women's right to choose. Who would have thought that the issue of the 9/11 attacks and terrorism could possibly come up in a discussion about abortion and the right to choose?

Well, guess what? Hughes spins the conversation around so fast it almost made sense -- well, if you suscribe to the point of view that people who believe in choice are anti-life.

It is unbelievable that Bush's confidante would stoop to such a level, if it wasn't the modus operandi at the Bush campaign.

I'm too tired to link, but I just had to get this off my chest before I retired. See if you can find the interview at CNN. It is truly the most incredible use of spin I've ever seen.

He Said, She said: Is Jose Padilla An Al Qaeda Terrorist? 


John Ashcroft and George Bush say yes, trust us, Jose Padilla is a dangerous terrorist, they call him the “dirty bomber.” Jose Padilla's mother and wife say no, trust us, he is a devout Muslim and trustworthy son and husband. Who is telling the truth?

After all, either he is or he is not a terrorist, right?

Normally, the factual question of whether Padilla is a terrorist and a member of al Qaeda would be decided by a jury at a trial. The trial would allow Padilla to provide evidence that he is not the person the government says he is, and that he did not do the things government officials claim he did.

Could you imagine living in a country where you couldn't contest the reason the government took you away and locked you up?

Well, if Mr. Bush and Mr. Ashcroft get their way before the United States Supreme Court this week, that country will be the good 'ol US of A. They claim that the President enjoys unreviewable executive discretion to detain an American citizen on American soil and incarcerate that person indefinitely. Audacious (and I mean the "contemptous of law" kind, not the "intrepidly daring" kind).

The short story of Mr. Padilla is this. Padilla is an American citizen who converted to Islam with his then-wife, and moved to Egypt to study. He decided to stay and married a Muslim woman; he and his American wife divorced. In the Spring of 2002, federal authorities detained Padilla in Chicago at O'Hare airport while he was traveling to visit family in the United States. At first, he was held on a material witness warrant issued by a judge in NY, but he was later transferred to military custody by order of the President. Before the transfer, Mr. Padilla was given a lawyer, but afterwards, he was denied access to her. (The government allowed him to meet with his attorney recently, but the meeting was monitored and recorded.) He has spent the last two years in federal custody without charges, and with no foreseeable release date.

Shortly after he was transferred to a military installation in South Carolina, Padilla's lawyer, Donna Newman, filed a petition for habeas corpus -- a petition challenging the legality of his detention -- with US District Court in New York, the court that issued the material witness warrant leading to his original detention. The President, through the Justice Department, contested the petition on several grounds, including procedural ones ultimately rejected by the courts.

One of the procedural arguments the President raised before the lower courts is before the Supreme Court this week. The President argues that Padilla did not bring the habeas petition against the right official, in this case it should have been the military commander of the South Carolina brig rather than Secretary Rumsfeld. The Supreme Court will have to decide whether the petition was filed properly against Rumsfeld. Even if the Court decides that the suit was not properly filed, it will likely decide the second issue anyway, since Padilla will likely re-file his petition if the Court says his lawyer got it wrong technically the first time.

The second issue is the one making so much news. As I noted in an earlier post, the Court is asked to decide whether the President has authority under the US Constitution as Commander in Chief, and under the Congressional act responding to 9/11, to detain an American citizen if he decides that the citizen is an al Qaeda terrorist bent on harming the US, or whether another act of Congress, the Non-Detention Act , forbids such actions by the President. (See some of the original materials here, including the decisions from the lower courts and friend-of-the-court briefs.)

Against the backdrop on the President’s claims, which I outline below, is the Non-Detention Act. It is very simple, and provides that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The statute says what it says: the US government may not imprison or detain any American citizen unless Congress has enacted legislation authorizing the detention (i.e., criminal laws, etc.).

The President thinks otherwise, however. He says that his constitutional authority as Commander in Chief of the armed forces gives him plenary authority to detain people he deems are “enemy combatants” during a time of conflict like the present one. In this case, he declared Padilla a member of al Qaeda based on intelligence information. Because he decided Padilla was an “enemy combatant,” no one, including a judge, can tell him what to do with Padilla until the President is ready to release him.

(Hmm, detaining someone on the basis of unchallenged intelligence information – not comforting after the intelligence on stockpiles of WMD in Iraq turned out to be bogus. Anyway, back to Padilla.)

If the President’s inherent constitutional authority is not enough, he argues to the Court, then his decision is authorized by an act of Congress. The “Authorization for Use of Military Force” that Congress passed after the 2001 attacks gave the President, he claims, a green light to detain Padilla because it gave him authority to take action against al Qaeda and those responsible for 9/11.

Padilla argues that the President’s assertion here, that he has authority to keep American citizens prisoners without any kind of trial or process to determine the correctness of his decision, is unprecedented and dangerous to the balance of powers. The President has no inherent constitutional power to imprison citizens of this country because he says so, even in a time of conflict. Moreover, Padilla argues, the Non-Detention Act requires express ok from Congress when the President wishes to detain people, and the general authority in the Authorization Act does not expressly allow detention, indefinitely, without some form of due process (like a trial to test the merits of the detention decision).

There is a lot more to say about this case, and the companion case involving Yaser Hamdi, another American citizen being held without due process. His case is a little different from Padilla's because Hamdi was captured overseas, not here in the United States. I'm sure I'll be saying more after arguments in the cases on Wednesday.

For now let me leave you with some thoughts related to the divergent views about Mr. Padilla expressed by Bush/Ashcroft and Padilla's relatives. About a year ago I was talking to someone about this case and the risk to liberty the President's position presented. I was admonished that we should trust the President and the officials who work for him because they would not have detained and sequestered Padilla if they didn't have a good reason to do so. I responded that that was the whole point of having judicial review -- to make sure the reason for the detention is, indeed, a good one and has a factual basis.

The President is human and so are the officials working for him. People make mistakes, that is what makes us human. (Yes, I realize the irony of that statement in light of this President's unwillingness to admit that he too makes mistakes.) It is possible that Bush made a mistake in this case. It is just as possible that he did not.

But should we trust that Bush did not simply on his word while Padilla spends his life in a prison cell protesting his innocence? I don't think so, but Bush thinks otherwise. And how ironic is it that this is the President who invaded a country to remove an executive officer who also had unfettered and unreviewable discretion to detain and incarcerate his citizens without due process to protect the government and its citizens from those the executive believed would harm them? Very ironic in my view.

Although I think the Supreme Court's decision in this case will be split like I anticipate the Gitmo cases will be, I'm also hopeful that the majority of the Court will err on the side of fairness and will grant Mr. Padilla the opportunity to challenge the basis for his incarceration.

Friday, April 23, 2004

Limited Sovereignty in Iraq. . . Huh? 


There are some things that are black and white. Take sovereignty for example. Here's how it is defined:

sovereignty:

1. Supreme power over a body politic

2. Freedom from external control - autonomy

If the United States, er, Coalition, turns over "sovereignty" to some entity in Iraq on June 30, but retains complete control over Iraqi armed forces and security, and prohibits the new "sovereign" Iraqi government from revoking or revising the (illegal under international law) laws Bremer pronounced during his viceroyship, then exactly how will Iraq meet the definition of "sovereign" on July 1?

It won't.

We shouldn't pretend that it will either. Either Iraq will be sovereign on July 1 or it won't. Period.

I suspect we have another Mission Accomplished-like PR stunt coming up this summer (i.e., much ado about nothing).

Our Commander-in-Chief of Deception 


President Bush is engaged in a campaign whose central tenet is deceive and deny. He showed his true colors again in a speech in NY on the Patriot Act. Bush either has no problem engaging in deception to achieve his goals or he is completely lacking in critical thinking and analytical skills that he doesn't know any better. In either event, I'm not comforted.

In his speech, he made several misleading or false statements about the Patriot Act. None of the statements were matters about which there could be a difference of opinion. He simply tells the American public falsehoods. The ACLU has a point-by-point correction to the incorrect assertions the President made during his speech. Once again, I am completely baffled at how anyone who believes good moral character is a necessary trait for a US President can believe that Bush meets that criterion.

Oh, and the folksy demeanor Bush uses to deliver deception and outright lies is, frankly, sickening.

Thursday, April 22, 2004

Rock Against Bush 


Here's to punk! Thanks to my colleague for the gift of this CD. The bonus DVD has two must-see documentaries: one on the 2000 election and the other on the WMD hype before the Iraq invasion. Check it out.

Wednesday, April 21, 2004

Taxpayers fund Bush reelection propaganda 


Ok now I'm really mad. Take a look at this comparison of text from Republican National Committee web site to a press release from the IRS. This really ticks me off. It should tick you off too no matter what your political party affiliation.

Thanks to TPM for pointing me to the site.

A few words about Bush's press conference 


I cannot believe that man is the President of the United States. He can't think of any mistakes before 9/11 from which he learned something because of the "pressure of trying to come up with answer" in "the midst of [the] press conference." Are you kidding me?! If he had actually reflected on the past and learned something from it, no amount of "pressure" from facing the press should prevent him from explaining himself. Give me a break!

Bush's answers demonstrated that he lacks mastery of the material on which his decisions are based. The bumbling string of soundbites that appear in the transcript (I refused to watch the thing live to ensure the longevity of my marriage) reflect the bumbling nature of Bush's war mongering and "policy making." (Not sure there is any public policy making in the White House, but only political policy making -- I would almost bet that many in Bush's circle, including GW himself, don't even know the difference between the two). I just do not understand how anyone, including members of Bush's own party, can view him favorably after he made such a fool of himself the other night

Uh, oh, I feel a rant coming on . . .

GET THAT SMIRK OFF YOUR FACE MR. BUSH! THERE'S NOTHING ABOUT YOUR JOB THAT YOU SHOULD BE SMIRKING ABOUT!

Oh, and by the way, what's up with the contradiction about intent to do us harm? You invade Iraq because Saddam harbored the intent to harm us, and you claim the possible means -- possible -- to carry out that intent. But you knew Osama and his minions of trained killers in Afghanistan, Pakistan, and other places also had the intent and had tried and succeeded in carrying it out in and outside the US. Nevertheless, you did almost nothing to make sure that your staff was doing everything possible to prevent the attack that warnings the summer before had said were coming.

In sum, in one case intent controlled the justification for military action that alienated many governments and whole societies against the US. In the other case, intent and past acts were not enough to take the measures you took after 9/11. The contradiction is quite difficult to reconcile, Mr. Bush, and I'm a big fan of nuances.







Bush Declares, "No Judicial Review on This Island! This Is A No Law Zone!" 


The United States Supreme Court heard arguments yesterday in the so-called Gitmo cases. Links to the arguments can be found on the PBS website. Each side had thirty minutes to argue, and each argument is in a separate audio file. I may be a legal geek, but I think this is good stuff for anyone mildly interested in the law, history, and/or human rights. The arguments were lively with lots of questions from the bench.

I was most surprised by the Solicitor General's so-so performance. The Solicitor General's job is representing the United States government before the United States Supreme Court. I expected much more from Theodore Olson, the fellow currently holding the job. Olson, whose wife was killed in the 9/11 attacks, is obviously a smart guy and a very successful attorney or else he wouldn't be Solicitor General. Suprisingly, though, he had trouble maintaining a consistent and clear argument during questioning from the justices.

For example, early in his argument, Justice O'Connor asked whether a US citizen held at Guantanamo would have a right to go to court to contest the detention, and he answered yes. That really took me off guard in light of the executive's position in its brief. The written brief argued that the case turned on the prisoners' alien status and the sovereign location of the place of their detention, Cuba. He told Justice O'Connor that under the Johnson v. Eisentrager precedent (the WWII case the US relies upon, ) habeas corpus would be available to the US citizen even though he or she were held at Gitmo.

Later he contradicted himself under questioning from Justice Souter. The justice was trying to get at the difference between the merits (ie, whether the prisoners are entitled to the writ) and the threshold jurisdictional issue (are the court house doors open to the prisoners at all irrespective of the merits of their claim). Olson backed away from his earlier position that a US citizen would have the right to seek habeas corpus relief if held at Gitmo because he has more rights under the US Constitution as a US citizen. Souter commented that under Olson's argument, it mattered not how many rights a US citizen might have if the citizen were held at Gitmo because the executive is asserting that there is no right of access to US courts when the claim arises in a sovereign nation.

Even if you agreed with the executive's position, you'd be hard pressed to say that Olson's performance was anything but mediocre, at best.

The arguments yesterday brought to the forefront the major difference between these and other cases the executive sites in support of its bold claim here. Unlike Johnson v. Eisentrager, the use of Gitmo to house prisoners of the so-called war on terror is intended to evade any independent review of the executive's actions relating to the prisoners. In Johnson, the case the executive relies on most heavily, there was no question that the prisoners were in fact enemy agents. That was not disputed. In this case, the petitioning prisoners complain that they are innocent and got caught up in the anti-terrorist dragnet erroneously. Also unlike Johnson, the petitioning prisoners here have not been given even minimal due process consistent with national or international law. None of the prisoners were captured in Gitmo or anywhere nearby -- they were taken there for the purpose of evading judicial review or the application of international law. The executive's claim that it is not bound by the Geneva Conventions there is further evidence of the executive's intent to avoid a check on its power.

Will the Court allow the executive to arrange affairs such that the Constitutional balance tips, as a matter of law, in favor of complete executive power otherwise unintended by the framers? That is the underlying question in the Gitmo cases I think. Petitioners' counsel referred to the executive's effort to avoid review as an attempt to create a "no law zone."

Another interesting point made early in Olson's response to the petitioners' argument was the irrelevancy of the war to the executive's claim. Olson began his argument by waxing eloquently on the threat we face from terrorists and the urgency to protect ourselves after the 9/11 attacks. He was quickly interrupted, however, by one of the justices. After a few questions, Olson had to concede that it mattered not why the executive was capturing and holding people at Gitmo if the basis for the executive's claim was the prisoner's alien status and the technical sovereignty Cuba maintained over Gitmo. If there was no jurisdiction, it didn't matter whether we were in a state of war or not. That fact would be relevant to the merits of the habeas corpus claim only.

Here's my prediction about the outcome. I think I said this before, but who knows (I'm too lazy to go back to an earlier post to check). I think the petitioners will prevail, but the decision will definitely be split. It is quite possible that if the prisoners win this round, they will ultimately lose on the merits of their requested relief. A measure of deference to the executive's decision is probably necessary and appropriate, even though I don't trust GWB and think he is a complete disgrace to our country.

But I do believe firmly in the rule of law. If the law says defer to the President, then it applies even if the President is a horror like GWB. I would note that my strong belief in the rule of law contrasts sharply with GWB's strong belief that he, with his God's guiding hand, knows what's best for Americans and foreigners alike.

Enough of that for now. I again urge you to listen to the arguments and/or read some of the briefs. This is an historic case and technology makes it so easy to learn about it first hand.

Tuesday, April 20, 2004

Fred Korematsu and others weigh in on Gitmo cases 


Fred Korematsu, and many others interested parties, filed an amicus or "friend-of-the-court" brief in the Gitmo cases that is worth a read, especially if you are a history buff. Mr. Korematsu was interned during WWII as part of the US government's detention and internment of citizens with Japanese ancestry. He took his case to the US Supreme Court and lost.

In his brief, prepared in part by an attorney with the Brennan Center for Justice, Mr. Korematsu argues that history demonstrates that the federal government has consistently curtailed civil liberties in ways that exceed its authority in times of war. He discusses the Alien and Sedition Acts of 1798, the suspension of the writ of habeas corpus during the Civil War, the Red Scare, Japanese interment, and more. Mr. Korematsu urges the Court to allow federal district court review of the plaintiffs' detention because each of the past cases has shown the need for meaningful judicial scrutiny of executive power to prevent abuse and arbitrary decision making. Essentially, he wants us to learn from past mistakes.

The brief concludes:

"Let us not now set the foundation for later apologies and belated attempts to restore narrowed rights.
Let us instead underscore the role of the courts in assuring the indispensable safeguards by which we are,
and should be, measured as a just society.

"This Court should make clear that even in wartime, the United States respects the principle that individuals
may not be deprived of their liberty except for appropriate justifications that are demonstrated in fair
hearings, in which they can be tested with the assistance of counsel. This Court should make clear that
the United States does not constrict fundamental liberties in the absence of convincing military necessity.
And even when such necessity is established, liberties can be restricted only while preserving some
avenue for review comporting with the minimum required by due process.

"Our failure to hold ourselves to this standard in the past has led to many of our most painful episodes
as a nation. We should not make that mistake again."

It's good reading.

There are many other amici in this case, including one by the British MPs. A bunch of former US diplomats filed a brief explaining the world-wide notoriety of the Bush Administration's claim that no independent US court may review the prisoner's detention. They argue that the executive's position has been used by nations around the world to detain their citizens and others indefinitely, without charges or trial.

A brief was also filed on behalf of several former American POWs from WWII. In it, they explain how prisoners of war are generally treated humanely by countries bound by and adhering to the Geneva Conventions but not otherwise. They argue that the US must assert its moral authority and follow the Geneva Conventions including the right to due process by an impartial tribunal. Like Korematsu's brief, this one is really moving.

The cases will be argued today (Tuesday) at the Supreme Court. Nina Totenberg's coverage of Supreme Court cases is among the best, and you can probably get it from NPR.org.



Wednesday, April 14, 2004

Links to info on Gitmo cases 


The website of Jenner & Block, a lawfirm that does substantial pro bono work, has the filings in the Gitmo cases I outlined in an earlier post.

Tuesday, April 13, 2004

More on the August 6 PDB 


Check out Larry Johnson's short piece on the August 6 PDB at TomPaine.com. Johnson is a former CIA employee who has worked in counter terrorism, and has written several PDBs in his career. He is now a member of Veteran Intelligence Professionals for Sanity. (It may also be noteworthy that he is a registered Republican and contributed to the Bush/Cheney campaign in 2000).


Monday, April 12, 2004

Shifting the public burden 


David Cay Johnston, the author of "Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich -- and Cheat Everybody Else," has a short piece adapted from his book in the San Francisco Chronicle, which I found at Commmon Dreams. It's worth a read to get an idea of how the tax burden, particularly under Bush, has shifted from the most wealthy to the middle class. According to Johnston, the very wealthy now pay a smaller percentage of their income to taxes than those earning substantially less.

Johnston's book is on my long reading list. This piece gives you a flavor of his thesis.


Sunday, April 11, 2004

Summary of the Guantanamo Cases Before the US Supreme Court 


On April 20, 2004, the US Supreme Court will hear arguments in two cases arising out the detention of foreign nationals at Guantanamo Bay, Cuba. The cases are Odah v. US and Rasul v. US. Both cases involve multiple plaintiffs, both individuals being held by the US military at Guantanamo Bay (Gitmo) and members of their families. Below, I provide the essential facts, the claims of the parties, the rulings below, and the arguments before the Court. I also explain my view of why this case is significant.


Odah v. US

Facts
This case was brought by 12 Kuwaiti nationals imprisoned at Gitmo and members of their families. Odah and the other prisoner-plaintiffs were seized shortly after September 11, 2001 by the US military in Pakistan and Afghanistan after being identified by local villagers as members of al-Qaeda (al-Q). They were taken to Gitmo in January 2002 and have remained there ever since. Since that time, the prisoners have not been charged with any offense; they have been denied contact with their family; they have been denied access to legal counsel; and they have not been allowed to seek review by an independent tribunal to determine whether a basis for their detention exists and whether it is lawful.

In May 2002, the plaintiffs filed the present action in US District Court seeking basic rights for detained prisoners: to know the charges, if any, against them, to be permitted family contact and legal counsel, and to have access to an impartial tribunal to review the reason for the detention. They claimed the denial of these rights violates the US Constitution, treaties to which the US is a party, and is arbitrary and capricious conduct.

The district court dismissed the case, concluding that it lacked jurisdiction to entertain the suit. The court construed the complaint as seeking habeas corpus relief, meaning, if the government's detention was unlawful, the court would have to release the prisoners. Relying on a case arising out of WWII, Johnson v. Eisentrager, the court concluded that it did not have authority to review a petition under the habeas corpus statute if the petitioner was an alien detained outside US sovereign territory, and Gitmo is technically Cuban territory. (In Johnson v. Eisentrager , the prisoners were enemy aliens who were tried and convicted in a military tribunal overseas, and imprisoned thereafter outside of the US.)

On appeal to the US Court of Appeals from the dismissal, the plaintiffs lost again. The appeals court read Johnson v. Eisentrager to mean that the courts of the United States were not open to any alien, friendly or otherwise, who was not present in the United States. It held that Gitmo was still technically Cuban territory notwithstanding the complete control and authority the United States exercises there. Plaintiffs filed a request for review by the United States Supreme Court, which granted certiorari.

Rasul v. US

Facts
This case involves an appeal by two Britons and two Australians held at Gitmo. Three were handed over to the US by the Northern Alliance in Afghanistan, and the other was transferred from Egyptian authorities. They claim they were not enemy or unlawful combatants, and that their detentions are illegal. Like the plaintiffs in the Odah case, they were held for two years without charges and have been denied access to counsel and an independent judicial review of their detentions. The plaintiffs sought habeas corpus relief, which was denied. Again, the issue was whether the US courts have jurisdiction to review the detention of a foreign national held by the military at Gitmo. The lower courts said that they were without such authority because of Cuba's technical sovereignty over Gitmo. The Supreme Court granted certiorari and consolidated this and Odah for argument.

At some point while the case was pending, the government released the Brits, and has given one of the prisoners, David Hicks, a lawyer and announced charges against him I think. A detention review process has also been established, I understand.

Claims of the parties

The main dispute in these cases centers on the subject matter jurisdiction of the federal courts. It is a technical but important question. Subject matter jurisdiction means a court's authority to hear a case, as opposed to the standards that apply when a case is brought within the court's authority. The most common examples from every day life are the authority of probate courts to probate a will, while criminal courts may not hear such cases. Vice versa: a probate court does not hear criminal cases.

Here, the executive is arguing that the federal courts have no authority to exercise their habeas corpus jurisdiction if that jurisdiction is invoked by an alien held by the United States overseas outside US sovereignty, irrespective of the circumstances of the alien's seizure and detention. The plaintiffs contend that their circumstances are distinguishable from those of the enemy aliens in the Johnson v. Eisentrager case, and that Congress expressly granted the federal courts subject matter jurisdiction through two statutes, one general (28 USC sec. 1331) and one specific on habeas corpus (28 USC sec. 2241).

The plaintiffs argue that if the Supreme Court upholds the dismissal for lack of subject matter jurisdiction, it means that anytime the US holds a foreign national, whether from a friendly country or not, at Gitmo, irrespective of the circumstances of the detention, the courts may not entertain any challenge to the detention or the conditions of it. The prisoners may be held indefinitely at the sole discretion of the executive.

The executive argues that the power and authority to hold the plaintiffs is a necessary part of the presidents execution of a congressional act following 9/11 in which Congress authorized him to use all necessary force against anyone responsible for 9/11 or anyone who harbored or aided those responsible. As such, the statute, combined with the prior decision in Johnson v. Eisentrager, gave the president and the executive branch unlimited discretion to detain those linked to al-Q. It notes that the prisoners held at Gitmo get there only after a long and thorough screening process because only the most dangerous and valuable people are intended to be there.

Some thoughts on the claims and implications

I've really boiled the claims down to the bare minimum. The claims in Odah also address more technical aspects of federal law that would bore most people to tears. The main argument outlined above about the extent of executive and judicial authority is really the main issue. I'm gonna guess, however, that if there are technical problems with the way the claims were brought, meaning that procedurally the Court may avoid deciding the central issue, that could happen. With the notable exception of the Bush v. Gore case, this Court generally doesn't like to decide constitutional or big issues unless absolutely necessary. But, it seems to me that the central issue has been raised in a way that the Court will not be able to avoid it.

In any event, there is some merit to the notion that an alien overseas held in non-US territory has no right to invoke the authority of our courts to review the alien's detention. But, I'm not sure that is a winning argument given the facts of the cases here. I do think the decision in Johnson v. Eisentrager can be distinguished, in great part because the prisoners there were given due process before they challenged their detention through the habeas petition they filed. That is not the case here. Indeed, while the executive is claiming it is implementing some process, it asserts that it is not bound to by law, and that none of the detainees are entitled to the Geneva Convention protections, even members of the Taliban. I find it hard to believe that the Court will allow the executive to use Gitmo as a way to avoid providing prisoners detained by US forces any avenue to ensure their detention is lawful and their conditions humane.

Without subject matter jurisdiction over habeas petitions arising out of Gitmo detentions, there is absolutely no way to ensure that the executive does not resort to torture or other unlawful or inhumane treatment of prisoners. Without the possibility of independent review mandated by law, Gitmo could in fact become a haven for torture and coercive interrogation (some say it has already become that, including two of the plaintiffs here who have been released).

The Court will no doubt be very mindful of the fact that the executive needs flexibility and discretion in times of war or national emergency. But those needs can be accommodated through appropriate standards for granting the writ. The issue is whether the courts may even peak at the detention and demand a minimum showing by the executive that there is a good reason for the imprisonment.

I'll update this post later with a link to the various submissions in this case.



Today's Notable Quote 


To those who justify the US invasion of Iraq on humanitarian grounds, guess who wrote this and when it was written:


"The president must remember that the military is a special instrument. It is lethal, and it is meant to be. It is not a civilian police force. It is not a political referee. And it is most certainly not designed to build a civilian society. Military force is best used to support clear political goals, whether limited, such as expelling Saddam from Kuwait, or comprehensive, such as demanding the unconditional surrender of Japan and Germany during World War II. It is one thing to have a limited political goal and to fight decisively for it; it is quite another to apply military force incrementally, hoping to find a political solution somewhere along the way. A president entering these situations must ask whether decisive force is possible and is likely to be effective and must know how and when to get out. These are difficult criteria to meet, so US intervention in these "humanitarian" crises should be, at best, exceedingly rare."


If you guessed Condolezza Rice in February 2000 you are correct. She has a good point. Too bad her boss doesn't practice in Iraq what she preaches here.

Saturday, April 10, 2004

Going from bad to worse in Iraq 


I'm posting this primarily for those who swallow the propaganda of the CPA and the United States spokespersons about how wonderful things are in Iraq; and most particularly for those who were suspicious of the identity and sentiments expressed by riverbend from Baghdad Burning. (Check out democracynow.org's site for an interview with a former spokesman for US authorities in Iraq. He couldn't wait to leave so he could start telling the truth of what is happening over there.)

Josh Micah Marshall who writes his own blog, www.talkingpointsmemo.com, and for The Hill, and does some freelance work as far as I can tell, has provided a portion of a letter from a friend who is currently in Iraq. The situation is horrible, and westerners of any kind are being targeted. It sounds so much like Lebanon in the mid-late 1980s. What is described in the few paragraphs on Marshall's site is consistent with journalist Naomi Klein's reporting from Iraq over the last week or so too. It really ticks me off that the people over there, especially the kids, have to go through so much more violence and instability as a result of what my government has done. Argh!

You can find Klein's Iraq reports at: www.nologo.org

She is a columnist for The Guardian, a UK newspaper for those who might not otherwise know.

One can't help wonder why any westerner would want to join in to help the reconstruction under the current circumstances. Bush and his team have really screwed this one up, and thousands upon thousands of people are being irreparably harmed as a result.

The tenets of Bush's leadership style: mislead, deceive, deny, and smear 


This is an excerpt from Sen. Edward M. Kennedy's speech at the Brookings Institution on April 5, 2004. I think he summed up Bush's leadership style and its consequences very well in the following passages. The speech goes into greater detail to prove its thesis, so it's worth a full read. Thanks to bro for sending it to me.


"In our open society, it is essential to distinguish vigorous debate over honest differences of opinion from the repeated use of false and misleading arguments to persuade the American people. Integrity is the lifeblood of democracy. Deceit is a poison in its veins.

The most important principle in any representative democracy is for the people to trust their government. If our leaders violate that trust, then all our words of hope and opportunity and progress and justice ring false in the ears of our people and the wider world, and our goals will never be achieved.

Sadly, this Administration has failed to live up to basic standards of open and candid debate. On issue after issue, they tell the American people one thing and do another. They repeatedly invent “facts” to support their preconceived agenda – facts which Administration officials knew or should have known were not true. This pattern has prevailed since President Bush’s earliest days in office. As a result, this President has now created the largest credibility gap since Richard Nixon. He has broken the basic bond of trust with the American people. . . .

. . .

This is the pattern and the record of the Bush Administration. Iraq. Jobs. Medicare. Schools. Issue after issue. Mislead. Deceive. Make up the needed facts. Smear the character of any critic. Again and again and again, we see this cynical and despicable strategy playing out. It’s undermining our national security, undermining our economy, undermining our health care, undermining our schools, undermining public trust in government, undermining our very democracy. We need a change. November can’t come too soon. "

I couldn't agree more, Senator Kennedy. Thank you.


Friday, April 09, 2004

Worrying about our soliders 


Members of the Vermont National Guard were injured in fighting in Iraq this week. Scary. Two were in the same brigade with my colleague I understand. That really worries me, and I think about him all the time. Wishing him well, hoping he's safe, hoping his family is surviving his absence ok. His absence serves as a constant reminder of the many other men and women serving overseas in harm's way. I pray they all return home to their friends and families safely.


Dr. Rice really ought to resign 


I watched Condi Rice testify before the so-called 911 Commission. I wanted to see the appearance for myself, on CSPAN, so I could view her demeanor in real time. That is very helpful, I think, for assessing the credibility of a witness under oath. I have some professional experience doing that, so I wanted to watch her testimony to see how she would answer the commissioners' questions. I was dumbfounded by so many of her answers. They demonstrated to me that she wasn't doing her job, or at least the job I think most Americans expect from the national security adviser, particularly given her statements about the structural dysfunction in the national security intelligence system. No one asked her to do anything about the AlQ sleeper cells?!!! No one asked her to do anything in response to the information contained in the August 6, 2001 PDB?!!! Oh, and don't forget that she can't remember if she told Bush about the fact that AlQ cells were in the US. (Hearing that made me do a Scooby Doo-like "Huh?!" grunt. Well, I confess, I Scooby Doo grunted a lot during her testimony.)

When Bush first made a big deal about how he will run the government like a CEO, I knew we were doomed. A CEO's job is very different from the leader of the world's most powerful government. There are some skills and tasks that translate well, but the public interest is far broader and more complex than simply fulfilling one's fiduciary duties towards shareholders, the primary responsibility of a corporation's management. Yes, corporate managers have duties to their employees and the communities in which they are located, but those duties must always come second to the money-making interest of the corporation because the corporation exists for the primary purpose of making wealth for its owners.

Government, particularly the federal executive branch responsible for our national security, has many other interests to account for, and the decisions are far more complex than those required of a CEO, in my humble opinion. The cost-benefit analysis looks much different when human lives are at stake as they are in national security matters. I don't think that there can be much dispute on that point. If so, I'd like to entertain it.

Rice's testimony made it plain to me that neither Bush, nor she, really has a clue about how to run a massive bureaucracy, and what needs to be done to protect civilians from harm. Their (Bush and Rice) lack of inquiry about the status of security preparedness in the US before 911 in light of the following evidence alone is utterly astounding to me:

(1) the summer threats; yes they were vague, but they were frightening even in Rice's own admission;

(2) the urgency with which the respected terrorism expert Richard Clarke conveyed the threat of AlQ to Rice immediately upon transition in January 2001, and his repeated requests to brief the President, which were denied, except as to cybersecurity;

(3) the August 6, 2001 PDB, while even if not a specific warning of an attack, had a title noting Bin Laden's desire to strike here in the United States and set out a long history of his work and the work of his associates here and around the world;

(4) Rice's knowledge that the FBI and the CIA were structurally separated because they could not share foreign and domestic intelligence and her belief that sharing would help make us more secure.

Rice explained to the commissioners that the country was never really at war with terrorism although we claimed to be before 911. But she also testified that she and the national security team (FBI, FAA, etc.) were at battle stations. Which was it? Aside from the apparent contradiction in that testimony, she blamed the FBI for failing to follow through on her alleged directive to the FBI to be watchful for terrorists -- alleged because the commission has indicated that it has no documentary or testimonial evidence at all corroborating that she or anyone gave such a directive. In light of what she knew or should have known about AlQ's historical actions, the current threats, the existence of AlQ cells in the US, the PDB reporting Bin Laden's determination to attack on US soil, and the fact that the CIA and FBI don't talk to each other, wouldn't you think she and the President would demand to know how the federal agencies responsible for our protection were prepared to deter an attack? Wouldn't you especially want to know if the President claims now, contrary to his claim to Bob Woodward, that he was aware of the grave threat AlQ posed to us, why didn't he shake trees? Why didn't he demand that Rice do so? Why did either of them wait for someone else to tell them what to do?

Excusing and justifying inaction, as Dr. Rice did in her testimony, because one's underlings did not tell you when you needed to act is one of the most ridiculous things I've ever heard in my short professional life. Seriously, she said she did nothing about the sleeper cells because the report containing the information did not ask her to take action. Hello? Anyone there, Condi? You didn't think to ask what could or should be done about that; how to stop it; how to infiltrate them? Maybe I'm just a hick lawyer, but those were my immediate questions when I heard this fact for the first time.

Ultimately, on this one, I fault Rice. Unless someone can convince me that it was not her job to investigate the threats to our country more thoroughly under the circumstances, then it remains my belief that she should take the fall for the 911 attacks and just resign and get on with her life. I still think Bush bears much responsibility, but mostly because he refuses to fire Rice. It is both a pity and an affront to the 911 victims and their families that Dr. Rice still has her job after what we know now she knew, or should have known, well before the hijackers got on those planes. In no way should my belief to hold her accountable be construed to blame her for the attacks. No, I blame the perpetrators and their terrorist mentors.

But, Dr. Rice must be held accountable for her failure to connect at least a few of the dots because that was her job. Oops, don't do it again, is not enough when 3,000 people die and countless more are injured. (Rice and her boss refuse, however, to even acknowledge that they made any mistakes whatsoever before the attacks occurred.) C'mon, at least toss a bone to the families who have pressed so hard for answers about why their loved ones died and disappeared on 9/11/01. Resign, Condi and go play with your piano.


Thursday, April 01, 2004

Grieving for strangers 


The story of the four Americans shot, burned and brutalized in Falluja was too much. I grieve for them and all the other lives lost as a result of my country's bombing and invasion of Iraq. Sometimes, the sadness of it all really gets to me. This latest story from Falluja was one of those times. My heartfelt condolences to the families of those victims. No human should suffer such cruelty and indignity.

The other thing this latest horror did was to increase my worry for my colleague Shawn, a member of the Vermont National Guard, who is serving in Iraq. I hear he is currently traveling through the country in a convoy from Kuwait, but I'm not sure where he's headed. I believe he is an MP, a dangerous job. We all just want him back safe and sound -- and soon. So do his two young children.




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