(excerpted from Realnews.com)

    The outrage is that the Canadians removed the United States and Guantanamo from a list of countries and places where the use of torture could be suspected on persons in custody. They did so only because they U.S. objected.  It was a craven act and calls into question the rule of law in Canada, their independence and their commitment to fight against torture.

The matter arose because of a 92-page booklet that the Canadians use to train their diplomats on how to make sure they are aware of torture when those diplomats visit Canadians in custody in foreign countries. The booklet is in large part based on evidence from Guantanamo and the Maher Arar case (he was the Canadian sent by the US for torture in Syria).

In addition to naming countries the manual lists a certain number of techniques that it considers torture. Of course, if you go down that list, it’s hooding, stripping, blindfolds, sleep deprivation, isolation– not even the worst things that the US is doing e.g.waterboarding—but still  torture. Those essentially line up with what the US has authorized for use in Guantanamo and very likely were used against the Canadian citizen that remains in Guantanamo, Omar Khadr.

One reason it’s really important, I think, for the Canadians to keep both the US and Guantanamo Bay on the list is, first of all, there’s a Canadian citizen right now in Guantanamo, Omar Khadr. And there’s also other Canadian citizens and residents who may or may not be picked up in the so-called 9/11 wars. And what Canada did here was really—I mean, I’m really in shock. I already thought—at least I’ve always thought that Canada had a semblance of democracy and of genuineness around these issues of torture, particularly after the Arar case. And what they apparently did here was, as soon as they got a complaint from the United States, that the United States didn’t want to be on the list of countries that might possibly be involved in torture, within one day, 24 hours as far as I can tell, they took the name, or they’re apparently taking the name of the United States and Guantanamo off the list, along with the name of Israel as well.

What’s really shocking to me, just shocking, is that it’s the Arar case, the Maher Arar case, where Canada acknowledged that it had wrongly cooperated with the United States, and its diplomats supposedly hadn’t noticed that Arar had been tortured, that was a principal reason for placing the U.S. on the list. . And this entire module that the Foreign Affairs was using to train its diplomats is really because of the Arar case and the recommendations of the commission that looked into the Arar case.

 The US is just being removed from the list by the stroke of a Canadian pen. . I mean, there should be just people in Canada screaming at the government about this, just screaming. It’s pretty amazing that the United States ambassador picks up the phone or says something publicly and is able to essentially change what the truth is, basically change the facts, and say despite the fact that you know about Iraq, that you know about Khadr in Guantanamo, that you know about Arar, or you know torture was an everyday technique used for interrogation in Guantanamo, that with one phone call Canada would just fold.

 Canada had been a bit of an example, sort of heroic for us in the United States, that our northern neighbor who finally had protected one of its  citizens, at least Arar—although it didn’t protect Arar initially—and had engaged in  a serious public inquiry. Then it put a lie to all its efforts by folding at the behest of the U.S.

 Well, we’ve known for a long time that the United States is engaged in torture. I mean, it’s public, and they actually probably want the world to know, because they’re using it as a technique of terror. We have all the documents, we have the Rumsfeld techniques; we have all the testimony of the tortured. But the fact that another country and an ally of the United States, in fact one of our closest allies, Canada, had actually labeled the United States as a place you have to look to for torture and Guantanamo as a place you have to look as well, may help the political process of impeachment and accountability in the United States for the torture program.

However, the collapse of the Canadians on torture, which is starring us all in the face, is a sad day for all of us.

THE WHISTLEBLOWER: We mourn the passing of Philip Agee, the courageous former CIA officer who, in his 1975 book Inside the Company: CIA Diary, exposed the agency’s subversion of democracy and its practices of torture and murder, naming hundreds of officers, agents and companies involved with the crimes. Agee was motivated, he said, by the CIA’s support for “the worst imaginable horrors” in Latin America. Agee paid a high price for his courage. He became a permanent target of the US government, and his passport was revoked. Driven out of Britain, where his book was first published, he was denied a safe haven in many other Western European countries. He was issued a passport by the revolutionary government of Grenada; when that government was overthrown, the Nicaraguans stepped forward. After the Sandinistas lost power, he was granted a passport by Germany, where he lived with his wife, Giselle Roberge Agee, a ballerina. Agee co-edited (with Louis Wolf) a book further exposing undercover plots and agents–Dirty Work: The CIA in Western Europe. He collaborated closely with Covert Action Information Bulletin, a magazine devoted to stopping criminal CIA activities. That work ended publicly, at least in the United States, with the passage in 1982 of the Intelligence Identities Protection Act–aimed, as one Congressman said, at “the Philip Agees of the world.” Perhaps the best way to remember Agee is to support others who find the courage to expose criminal misconduct by their own governments.   MICHAEL RATNER, Nation Magazine

Michael Ratner Video:  Missing CIA Tapes, Torture and the Supreme Court
http://www.truthout.org/docs_2006/122007J.shtml
Truthout’s Matt Renner interviews acclaimed human rights lawyer Michael Ratner about the destruction of CIA interrogation tapes and his work on behalf of prisoners in the so-called War on Terror.

December 14, 2007 7:30 PM
http://commentisfree.guardian.co.uk/michael_ratner/2007/12/the_fear_of_torture.html

As we all now know, the CIA has destroyed hundreds of hours of video tapes of the likely 2002 water torture of three men, allegedly involved with al-Qaida, by its agents. Although the CIA has not acknowledged that the videos are of water torture - often known euphemistically as “waterboarding” - a former CIA agent, John Kiriakou, has said that the waterboarding was authorised from the highest levels of the Bush administration.

Now we are seeing the usual Washington scrambling and casting of blame after another serious revelation of torture. Most of the official focus seems to be on who made the decision to approve the destruction and not on the underlying issue: the fact that the Bush administration, with the apparent consent of some of the congressional leadership, sanctioned torture.

This endorsement was criminal under both US law and international law - and that opens high level administration officials to prosecution, whether in the US or abroad.

This fear of prosecution for torture is the best explanation as to why these tapes were destroyed. They would have been vivid and compelling example of the violation of laws against torture - laws that in the US carry a life sentence or the death penalty if the victim is killed. Laws in most European countries make such violations of the convention against torture a universal crime, prosecutable no matter where the torture occurred or where the torturer resides.

Another explanation for the destruction might be the anger the footage could engender in the Muslim world if they were revealed publicly. However, the chances for public revelation were slim. Unlike the Abu Ghraib prison photos, these tapes were apparently only in the possession of the CIA. That explanation lets the CIA and the Bush administration off the hook much too easily and ignores evidence that fear of prosecution was likely critical in the destruction decision.

CIA head Michael Hayden’s explanation is patently absurd: he said that he feared for the safety of the CIA agents involved if al-Qaida saw their identities. Apart from the ability to shadow out the faces, what are the real chances that someone in al-Qaida would see the tape and be able to identify and track down an agent?

The fear of prosecution best explains the destruction of the tapes. That fear has governed numerous actions of the Bush administration regarding the torture program. The earliest legal memos from the Bush administration, as long ago as January 2002, were explicit on this issue and advised not applying the Geneva conventions as a means of avoiding prosecutions that could follow from their violation. The McCain amendment builds into its prohibition on cruel, inhuman, and degrading treatment a defense for authorized interrogation practices and those that relied upon “the advice of counsel.” The Military Commission Act of 2006, passed after the destruction of the tapes, forgives past violations of the Geneva conventions by officials involved in the torture program. So we have Congress, and not just the Bush administration, attempting to absolve clear violations of law.

This explanation also makes sense considering the risk that arguably was taken by destroying the tapes: they were relevant to a number of proceedings including the Guantanamo federal cases, criminal trials, the 9/11 commission and a federal freedom of information act case. Hayden tries to claim otherwise, saying they were not relevant to “any internal, legislative, or judicial inquires.” Yet, orders had been entered in those cases prior to the destruction mandating preservation or release of such information.

Now, those responsible for the destruction are facing contempt of court and possibly other sanctions. The tape destroyers and their superiors had to be very worried to run this risk. Unfortunately, we will never know what these tapes show. It is doubtful that anyone would question that waterboarding was torture if the tapes were seen. The tapes may also have much higher level officials observing the water torture then we now realize. Former US secretary of defence Donald Rumsfeld was involved in the torture of Guantanamo detainee Mohamed al-Qahtani, and was likely involved in others.

So why, if there was such a fear of prosecution by officials, did they video hundreds of hours of these interrogations in the first place? Hayden says it did so to insure that the CIA proceeded “in accord with established legal and policy guidelines.” This seems farfetched. Would the CIA or the Bush administration take the huge risk of making such videos when the tapes could lead so directly to a prosecution?

There is another, more plausible, explanation. It is likely the tapes, or some version of them, were to be used as a threat against those who were waterboarded and others whom the CIA or US officials wanted to interrogate. Videos and photographs of the humiliation and powerlessness of those tortured could be used as threats to get other detainees to “cooperate” and could even make informants of some detainees to be released - under threat that their “cooperation” or “humiliation” could be exposed. This also explains why it took so long to destroy the tapes. If they were just done to insure compliance with guidelines, why not destroy them a short time later?

In the end for the CIA and the administration the destruction of the tapes, despite the fallout, was better then the alternative of the potential criminal prosecution of both CIA and high level executive officials. The front page scandal we are dealing with is about the destruction of the tapes and not the criminal conduct that underlies them.

The Bush administration can and will weather, as they have before, the fallout and finger pointing from this scandal. A few congressional inquiries and some internal investigations from Congress, possibly a scalp or two of a mid-level official, and that may well be the end of the matter. This outcome is more or less assured - in part because of Congressional involvement in tacitly approving the techniques and possibly the destruction itself - because the best evidence no longer exists.

Excerpt From Michael Ratner Speech on Acceptance of Puffin/Nation Award

December 10, 2007

In accepting this remarkable award I do not stand here alone.

I stand with the generations that have gone before—those particularly at the Center for Constitutional Rights that have always been willing to upend the status quo and take personal and political risks.

I stand especially on the shoulders of our founders of 40 years ago—William Kunstler, Morton Stavis, Arthur Kinoy, and Ben Smith.

And one, of almost that generation, Peter Weiss—is here tonight –the architect of our efforts to bring Rumsfeld, and other administration criminals, to justice in Europe.

I also stand here with current and future generations as well—the people of CCR , led now by Vince Warren, our Exec Director. They are doing the most difficult work, at Gitmo—and around the world—Heroes—all.

In some ways my greatest achievement at CCR is the confidence I have that they are– and will remain–as Alexander Cockburn said of my CCR generation—-

A Splendid Band of Tigerish People—-

Over the last few years I have become acquainted with Henri Alleg, a French Algerian, in his 80’s who was water tortured —or as this administration says—water boarded by the French.

Here is how he described his water torture—a practice that goes back to the inquisition—

The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. … I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs as long as I could. But I couldn’t hold on for more than a few moments.

I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.

Think about Henri Alleg – when you hear the CIA talk about “enhanced interrogation techniques”—or think about– a terrible agony, that of death itself,— taking over you– when you hear our new AG refuse to condemn water boarding, or when you hearthat some of our democratic leaders were briefed—and made not a peep of objection.

Let there be no doubt– the Bush administration tortures; it disappears people; it holds people forever in off shore penal colonies like Guantanamo, it renders them to be tortured in other countries—this is what was done to CCR’s client Maher Arar who was rendered to Syria for torture.

And sadly a majority of our congress, our courts and our media have given Bush a free hand, and in fact, worse, have been the handmaidens of the torture and detention program.

But it has not been given a free hand by us at CCR

Today we are in the midst of a pitched battle—a pitched battle to put this country back —at least ostensibly–on the page fundamental rights and moral decency.

The battle is difficult and the road is long and hard— On occasion I get pessimistic.

Sometimes I and my colleagues feel like Sisyphus.

Twice we pushed the rock up the hill and won rights for gitmo detainees in Supreme Court and twice the rock was rolled back down by congress.

So we pushed back up again—5 days ago we were in the Supreme Court for the third time.

It was more difficult because the justices have changed—4 are antedeluvians—lost forever to humanity.

But we have had our victories.

1. We have gotten lawyers to Gitmo, stopped the most overt torture, and freed half the Gitmo detainees—over 300.

2 . We have gotten Maher Arar out of Syria; Canada has apologized, and said he was an innocent man, but he remains on the US terror list.

3. We have slowed, but not yet stopped, a remarkable grab for authoritarian power.

I also don’t lose hope because I think about the early days of the Gitmo cases.

At first we were few—but now we are many—

At first when CCR began we were the lonely warriors—taking on the Bush administration at Gitmo.

Now we are many—now we, just on Gitmo alone, are over 600 lawyers.

Most from major firms; they are of every political stripe.

Understanding that what is at stake—is liberty itself.

This struggle will be seen as one of the great chapter in legal and political history.

——————————————————–

Today, War, torture, disappearances, murder, surround us like plagues.

Most of this country goes on its way—oblivious.

Some don’t want to know, and are like ostriches.

Some want to justify it all.

Some want to make compromises.

But be warned–We are at a tipping point—a tipping point into lawlessness and medievalism.

We have our work to do.

For each of us—the time for talking is long over.

This is no time for compromise or political calculation.

As Howard Zinn admonishes us:

“It is the job of thinking people not to be on the side of the executioners”

The Puffin/Nation Prize reminds us all– that the job for each of us is-–

Not to be on the side of the executioners—

Thank you all.

 I am writing this on November 13^th.  That day probably has little significance for most readers of this blog. But it is a day, as they say, that should live in infamy. On that date in 2001, two months after 9/11, President Bush issued Military Order Number 1. (www.whitehouse.gov/news/releases/2001/11/20011113-27.html)  I remember the shock I awoke to upon reading the military order in the newspapers of November 14^th. I remember thinking to myself that there has just been a coup d’etat in America, perhaps an exaggeration, but nonetheless a watershed moment in a country that I still though had some semblance of a democracy and of the principle that Presidential authority was under law.

            As most of you may not recall the order, let me remind you of its three key provisions. First,  the President claimed the authority to capture, kidnap or otherwise arrest any non-citizen (it was later extended to citizens) anywhere in the world including the United States whom the President believed was involved in international terrorism and hold them forever without any charges, proceedings or trial. Amazing—a person could be held forever just because the President wanted them so held; he took on the power to disappear people.  Second, the order did provide that if, and if is the crucial word here, if the person was tried (there never needed to be a trial) such trials were to be held by special ad hoc courts called military commissions. These commissions had no resemblance to regular trial courts. The entire proceeding could take place in secret, with evidence from torture, and those found guilty could be executed in secret. Third, to the extent the names of those imprisoned or tried could be determined and lawyers found, no court could hear any case.  This order embodies within it the violations of fundamental rights we are facing today:  indefinite detention without trial, Guantanamo, secret sites, special trials and disappearances. While it does not mention torture, that appears to have come a bit later, a secret detention system is part and parcel of a torture system.  Let’s also repeat:  this was a military order in a society and country that was us still or purported to be under civilian rule.

 This orders more then any other single document embodies our lost liberties. It was this document that pushed the Center for Constitutional Rights into action. It was this document that made CCR begin the historic fight the rights of those who would a few months later be imprisoned at Guantánamo. We said, despite the hate and the anger that ensued, that we would represent the first detainees imprisoned under this order and we did. (http://www.law.uchicago.edu/tribunals/nyt_113001)  We are still doing so today. On December 5 the latest in the Guantanamo cases will be argued in the Supreme Court. We will never give up this fight.

If Schumer and Feinstein want to understand the “procedure,” they should demand to interview the men who were likely subjected to it.

By Michael Ratner

Nov. 06, 2007 | This week Michael Mukasey will seek to clear hurdles on his path to become the highest law enforcement official in the nation. Yet he still refuses to answer a fundamental question: whether or not waterboarding is torture and, therefore, prohibited under our laws. No matter what our president says, this is not political bickering. It is about whether the rule of law still means anything to the executive. And whether our senators have the backbone to stand up for a principle more profound than political expediency.

If senators such as Charles Schumer and Dianne Feinstein have doubts about whether waterboarding is torture, they should — and should be allowed to — interview the men who have likely experienced it in secret CIA detention facilities in American hands.

For example, they should interview Majid Khan, a Baltimore resident abducted and held for years in secret CIA prisons. He was a “ghost detainee” who this past year was among the “reappeared” at Guantánamo.

President Bush himself has clearly stated that Khan was held at a secret CIA facility before being transferred to Guantánamo. Bush also made clear that an “alternative set of procedures” were enforced — procedures widely believed to include waterboarding.

So, was Majid Khan really waterboarded? I don’t know. Khan has been prohibited from speaking to anyone except my colleagues, lawyers at the Center for Constitutional Rights who were finally allowed to visit him recently. One of those attorneys, Gitanjali Gutierrez, and her colleagues have also since been silenced: The government forced them to sign a protective order because Khan knew about “enhanced interrogation techniques.” Likely translation: Khan was tortured and the government is trying to cover it up by silencing him — and even his attorneys.

So the government has successfully kept the public in the dark. But senators on the Senate Judiciary Committee can turn on the light.

Those senators are perfectly within their rights and powers to pick up the phone right now and demand to interview Khan and others who were likely tortured at CIA secret sites. They can conduct classified interviews with the lawyers for the Center for Constitutional Rights about their milestone visit with Khan. They can learn exactly what happened to these men. And, if the men were waterboarded, they can learn exactly what the practice entails.

What they will likely hear are descriptions like one written by Henri Alleg, a French journalist who suffered waterboarding during the Algerian war: “I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.”

And so the question is extremely simple: Do the men and women who serve on the Senate Judiciary Committee want to know, or not? Do they care about whether our nation has tortured? And if they do care, are they still prepared to confirm a man to be our attorney general whose legal and moral compass is so deformed that he cannot speak plain truth? If the U.S. Senate cannot summon the courage and decency to draw this basic line, then a citizen must ask if it serves any useful purpose at all.

I believe that upon talking to victims of waterboarding any reasonable senator — or citizen — will define it as torture. There is no reasonable disagreement on this point. It was a technique invented in the Spanish Inquisition and used to terrible effect in the centuries since. The only question is whether there is any institution or group of politicians in this nation with the will to stand up for our Constitution, even at the risk of their own political prospects. If there are such men and women, then there is yet hope that our nation will rescue the Constitution from those who would shred it.

This is not a moment for political theater. This is not a moment for politics at all. This is the moment for good and decent leaders to remember that the truth still matters and to act accordingly. Michael Mukasey aspires to be the living face of America’s laws. By talking to ghost detainees about their experiences, we can help him reveal if he understands or respects those laws at all.

By Michael Ratner and Jonathan Bennett*

Two weeks ago the struggle against the use of torture in the U.S. got a boost, by accident. A federal court in New York City published an opinion in a civil suit that includes a graphic description of the FBI extracting a false confession from a completely innocent man by threatening to have his family tortured. Making such a threat is considered torture.

But the court seems to have belatedly realized it made a mistake in publishing the torture details. Within minutes of having published the opinion, the court withdrew it and published a redacted version a day later. In place of the threat of torture, the sanitized version reads: “This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, [FBI Agent] Templeton did not contest that [the suspect’s] statements were coerced.”

But the cat was out of the bag. The original opinion had been copied, so we have the now-suppressed text.

The innocent man who was tortured is an Egyptian named Abdallah Higazy. In 2001 he was a 30-year-old engineering student at Polytechnic University in Brooklyn. On September 11, he was living in the Millennium Hotel, which is across the street from the World Trade Center. All the hotel guests were evacuated when the second plane hit the towers.

When Higazy returned to the hotel to recover the property he left behind, he was confronted by three FBI agents, who asked him about a 2-way radio that had been found in the hotel, a radio designed for communication with aircraft. Higazy told them, truthfully, that he had never seen the radio and knew nothing about it. But the FBI agents thought that Higazy was lying, so they took him into custody.

While Higazy was being held in solitary confinement for 29 days, he “confessed” that the radio was his. But the case against him suddenly fell apart when an airline pilot showed up at the hotel to reclaim his property, including the same radio that Higazy had confessed was his.

Thanks to the court’s mistake, we know why Higazy invented a story about owning the radio and how the FBI got him do it. It paints an ugly picture of the way the FBI treats suspects and the way that the court of appeals helps cover up the FBI’s illegal behavior.

According to the unredacted decision, an FBI agent “explained that if Higazy did not cooperate, the FBI would . . . ‘make sure that Egyptian security gives [his] family hell.’”

The suppressed text of the opinion continues, “[The FBI agent who had questioned Higazy] later admitted that he knew how the Egyptian security forces operated: ‘that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.’”

“Higazy later said, ‘I knew that I couldn’t prove my innocence, and I knew that my family was in danger.’ He explained that ‘. . . . If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.’”

So, to protect his family, Higazy made up a story, with the FBI’s help. First Higazy said that he found the radio. But then he reversed himself and said he had no connection to the radio. “Agent Templeton next banged on the table and told Higazy to tell him the truth. Higazy then claimed he found the radio at the base of the Brooklyn Bridge, but once again recanted this story and said the radio was not his. And once again, Templeton banged on the table and demanded the truth.”

“Finally, Higazy explained to Templeton that he stole the radio from the Egyptian Air Force and used it to eavesdrop on telephone conversations. Higazy did not recant this version. Agent Templeton next prepared a written statement for Higazy to sign that included this explanation.”

The picture is pretty clear – whenever Higazy denied any connection to the radio, the FBI interrogator, who had already threatened Higazy’s parents, reiterated the threat with a display of violence. Finally Higazy came up with a story that satisfied the FBI, but which was also a total fabrication.

If we needed evidence that torture is not only immoral and illegal but also completely ineffective, could we ask for a better example?

*Michael Ratner is the president of the Center for Constitutional Rights, where Jonathan Bennett is a volunteer. The Center for Constitutional Rights is active in many cases to enforce the prohibition of torture in U.S. and international law.

It is shocking to see those who should know better supporting and in some cases practically fawning over the nomination of Michael Mukasey for Attorney General.   There is simply no excuse for anyone who cares about fundamental rights and civil liberties to support Mukasey’s nomination. What has surprised me is that some of those people I assumed were allies in the fight to close Guantánamo, end arbitrary detentions carried out under the rubric of “enemy combatant,” stop torture and say no to kangaroo courts for alleged terrorists,  are willing to look the other way and let the President’s nominee become Attorney General.

As have many, I have been incredibly disturbed over the path this country has taken since 9/11. We have become an outlaw nation engaged in the very inhumane practices we formerly condemned in abusive dictatorships. Not that we were perfect before, but at least there was embarrassment about serious violations of fundamental rights. Since 9/11 that has all changed: we are now a country of torture, disappearances, indefinite detentions and special military courts that are outside the time-tested criminal justice system. We are in a Constitutional crisis where the entire system of checks and balances and limits on executive power have been undermined.  People of conscience know that we must try and bring our country back to the rule of law— the principle is authority under law—not an  executive that it is the law.

What does this dictate in the next attorney general?  The struggle  over this nomination is  a key place where the fight must begin to restore our liberty.  Democrats in Congress, Republicans who have any humanity, lawyers, scholars and others must say “enough.”  It is not sufficient to have a nominee with a judicious personality or buy into the argument that the President can nominate someone who represents his legal views.   That time was over long ago. Those legal views lead to the abandonment of the Geneva Conventions, war crimes and torture. Permitting and confirming the President’s choice to go forward is to compound gross illegalities. A judicious personality, as some claim for Mukasey, is meaningless, if the nominee’s legal opinions are antithetical to everything this nation should stand for.

The qualifications necessary for a new attorney general could not be clearer. No Attorney General should be confirmed unless he or she agrees to close Guantánamo and other off shore prisons, end extraordinary renditions, end imprisonments of so-called enemy-combatants, end the misuse of material witness warrants, stop the torture program, and end kangaroo trials for alleged terrorists. No Attorney General should be confirmed who does not promise to begin investigations of those officials involved in the torture program, the rendition program and the other scandals that have plagued this administration.  These are the minimum requirements. Those who would vote or support an Attorney General who is unwilling to insure the fundamental protections are part of the problem. The solution is to stand for what is right and just. This is not about politics; its about the Constitution and fundamental rights.

Now let us take a moment and see if Mukasey fits the criteria necessary to bring our country out of what Vice-President Cheney proudly referred to as working the “dark side.”  Mukasey has never made affirmative statements rejecting the administration’s polices and practices on these issues. In fact, to the extent he heard cases concerning these questions as a judge, he ruled in the Bush administration’s favor on what was clearly it’s misuse of a material witness warrant to hold Jose Padilla in custody. (A “material witness” warrant can hold a witness with no need to show that you did anything wrong.) Mukasey then upheld the administration’s detention of Padilla as an “enemy combatant” with a minimal evidence.  In his op-ed writing for the Wall Street Journal he advocates special trials for alleged terrorists, supports some of the worst provisions of the U.S.  Patriot Act that threaten First Amendment rights, and minimizes the roundups of non-citizen Muslim men after 9/11.  Not only does Mukasey not fit the profile of what is needed in an Attorney General, he is the embodiment of  some of the administration’s worst practices.

It is long past the time in this country when we should allow this administration to appoint an Attorney General who will not restore fundamental rights. One commentator said Mukasey should be confirmed, otherwise we will have gridlock. Gridlock is better then the alternative– a nominee who will continue this country’s descent into lawlessness. It past the time for hard questions of the nominee; this is a time to send the administration, the country and world a message—we reject the barbarisms of the Bush administration; we stand solidly behind a world where fundamental human rights are just that: fundamental. The soul of our country is at stake. The time for change is now.

Recently the New York Times published an Op-Ed by Jack L. Goldsmith and Neal Kaytal, two professors, calling for a special national security court to try alleged terrorists, a system which would legalize preventive detention in the United States. There was outrage by many civil libertarians and particularly by those of us who represent Guantanamo detainees. I think the establishment of such a system in the U.S. puts us well along the road to a police state. My published letter to the New York Times is set forth below.

New York Times July 16, 2007

A New Court for Terror Suspects?

To the Editor:

Jack L. Goldsmith and Neal Katyal call for creation of a preventive detention system. We already have that system at Guantánamo. The idea of making this system permanent and more acceptable by adding some bells and whistles — a special national security court — is going in the wrong direction. It is contrary to American values and will ensure the continued negative consequences of the current policy that the authors refer to in the article: harm to our reputation, disrupted alliances and the “war of ideas with the Islamic world.”

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.

No domestic or international law permits preventive detention under the current circumstances. The International Covenant on Civil and Political Rights, a treaty binding on the United States, permits it only in the most drastic of circumstances when the actual continued existence of the nation is threatened. Even then, a situation we are not facing, the detentions must be of an exceptional and temporary nature — not potentially forever. The treaty expressly prohibits indefinite detention without charges and trial.

The right direction is to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.

Michael Ratner
President
Center for Constitutional Rights
New York, July 11, 2007