At a reception I attended the other day a progressive acquaintance came up to me and said the left “must stop bashing Obama. Keep doing it and he will lose the election. We should be thankful for what we have.” I am not sure he thought that I was one who bashed Obama or he just wanted to get that message out in the community. As it happens I do not “bash Obama” whatever that means; but I am sharply critical of a number of his policies and practices and those of his administration. (This is not to say I would have preferred McCain to win; I would not have and on some issues, mostly very safe ones, Obama has made some difference, e.g. Ledbetter Fair Pay Act, ending the HIV exclusion.) I responded to my acquaintance: “It won’t be the criticism of progressives that will lose him the election—we hardly have that kind of power. It is his own actions especially around economic issues that could make his reelection difficult; actions that have alienated and angered significant segments of the unemployed American population. I don’t do my work by thinking about whether it will help or hurt Obama in the next election. I don’t tailor principles to politics.”

In arguing that we should mute our criticisms of Obama we are being asked to accept administration actions that are unacceptable; practices that will involve the deaths of thousands and the violation of our own constitution and binding treaties. I have always believed we must advocate and act on principle and that is the way to make change.  So when we see that Obama will continue the preventive detention scheme that underlies Guantanamo, that he will have detainees tried before military commissions, that he will continue the incommunicado detentions at Bagram and hide detainees from the Red Cross, we cannot and should not stand by in silence. We are seeing the continuation of Bush’s law and the deterioration of fundamental protections of freedom. When we see Obama hide illegal acts behind claims of “state secrets;” when he refuses to have the torture conspirators investigated and prosecuted; and when he even welcomes some of the conspirators into his administration, we must speak up. Granting impunity to officials who torture is to insure that we will again be a nation of torture and that the message heard by every petty dictator around the world is: “The United States can torture in the name of national security and so can we.”  When we see officials of this administration attack the Goldstone report which documents war crimes in Gaza, we understand the deep hypocrisy of this government.

Nor can there be any screaming that is too loud in opposition to the wars that Obama is continuing without end. The July 2011 beginning withdrawal date from Afghanistan was shown to be a fiction within an hour of Obama’s speech. Obama like those before him accepts that “We are the United States and war is what we do.” Obama and the Presidents before him are bleeding our country and world. Of course, I do not expect miracles from one man on top of a huge national security establishment that is hard to buck. Rome was not built in a day and neither will it be dismantled in a day. But I don’t see a lot of dismantling going on. What I see is more and more building of a national security state—perhaps with a softer hand—and that is alarming.

As I said when I began this piece I do not think progressive and liberal criticisms on most of these issues or other disappointments such as Obama’s failure to end “Don’t Ask, Don’t Tell” will have much affect the next Presidential election. Even the war probably won’t have much to do with who is our next President. Obama took a safe course, at least for himself and the next election: he gave the generals roughly what they asked for and the Republican Secretary of Defense, like the cat that ate the canary, is smugly satisfied.  

It seems likely to me that the economy will be Obama’s Waterloo. He has shoveled billions and billions into the big banks, and the wars and almost nothing into creating jobs and saving people’s homes.  Regarding the jobs meeting he convened to help with ideas about how to reduce unemployment, he said there are “limits to what government can do and should do,“ and that he was open to “responsible” and “demonstrably good” ideas to create jobs. I don’t think that is what the over 15 million unemployed in the country wanted to hear. They need jobs and they especially did not want to hear Obama say there was not going to be enough money to do it. The danger here is not just that Obama will lose the next election; but it’s one we have already begun to see: a right wing populism that often occurs in times of great economic dislocation, income disparities and joblessness.

We are at a time of great economic insecurity; a time when fundamental rights are under threat from our own government and a time when we are the world’s warriors. Silence or passive acquiescence is complicity. Enough already!  We can applaud Obama’s actions when they are right; we cannot and should not excuse or explain away his actions when they are wrong. If we don’t speak out, who will?

Last week was a week of bad portents if we are trying to divine the direction of the Obama administration regarding some fundamental human rights questions, particularly regarding the treatment of detainees at Guantanamo.

One of Obama’s earliest acts was to order that Guantanamo be closed within one year. The executive order laid out three options as to how to deal with the remaining 245 detainees: try them, repatriate them or hold them in some other legal way.  We at CCR opposed a three option solution to Guantanamo. We believe there only two options: trials or repatriation. We oppose any form of preventive detention which is what Guantanamo is today. We oppose putting a legal wrapping on Guantanamo no matter where it is located or who does the wrapping. We remained hopeful that the third option, preventive detention, would not be a choice.   We may be losing that fight. On April 30^th Defense Secretary Gates said that as many as 100 Guantanamo detainees could end up held without trial in the United States.  A day before Attorney General Holder had this to say in Berlin:

“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”

The answer Mr. Holder is you can’t.  All the due process in the world does not diminish the fundamental human rights violation in jailing someone, possibly forever, without charging or convicting him of a crime.  Big Brother may be alive and well in the new administration.

As another one of his earliest acts Obama suspended the military commissions at Guantanamo. He did so for a period of four months.  It was better than letting them continue, but not much better. For what was to come after the four months?  At CCR we were worried. Why did he not end them, get rid of them all together? After all, they were entirely discredited. In seven years there were only two minor trials and evidence derived from abuse and torture was still permitted. Why should there be any kind of special courts in a democracy with a 225 year history of regular trials in regularly constituted courts—U.S. federal courts. The main reason for special courts is that it is easier to convict people when the rules are made up after the fact: the rules are bent toward conviction.

In a depressing and infuriating revelation in the New York Times on May 2, the revival of military commissions is stated as almost a sure thing.  The reason according to some administration lawyers is that it would be difficult to prosecute defendants in regular courts because they had been brutalized and because prosecutors want to use hearsay evidence. That is some reason. Let’s just put it starkly. Such trials would be an abomination, an abomination approved by our new President. 

Although not directly related to Guantanamo, but one that could have an effect on the issues outlined above is the appointment of a new Supreme Court justice. I was dismayed to read all of the verbiage coming out of pundits that he will choose a pragmatist and not a “larger than life liberal.” Let’s hope it is not true and let’s try to make sure it won’t come to pass. Why did the Republicans with too much Democratic support (no filibuster) have no trouble shoving two arch conservatives down our throats?  I don’t get it.

Today, the Obama administration set forth the authority under which it claims it can continue to hold those at Guantanamo without giving them a trial. If any of us thought or hoped or prayed that Obama would reject the detention without trial scenario authored by Bush, we were sorely disappointed. Yes, the term enemy combatant is gone to be replaced by “members of enemy forces.”  And who are they? Well just go back to the Bush administration definition of “enemy combatant” with one small change—the word “substantially” in front of support. So, it is roughly the same except now the Obama administration says they will not detain the little old lady in Switzerland who unwittingly gives money to Al Qaeda or the Taliban.   

 Again, as with Bush the Obama administration is applying the laws of international armed conflict (the laws of war) to the Taliban, Al Qaeda and associated forces when those laws have no application to those entities in the current situation.  Again as the Bushies did they are conflating the right to use force against terrorists with a claim that they can be held forever without trial. The laws of war contain no such authority.  Again, they are claiming the right to capture and detain people anywhere in the world—the world is still a battlefield according to Obama. So, the “global war on terror” continues.

Here is the “new” definiton of detainees who are no longer called “enemy combatants.”  Guess what–as I said above:  its roughly the same.

The President has the authority to detain persons that the President determines
planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, and persons who harbored those responsible for those attacks.
The President also has the authority to detain persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated forces that are
engaged in hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly supported hostilities, in
aid of such enemy armed forces.

Comment

By Michael Ratner & Jules Lobel

President-elect Obama should be applauded for reiterating his promise to close the prison camp at Guantánamo. It has been a national embarrassment and a symbol of everything the Bush administration has done wrong in the “war on terror”: detention without charges or trial, torture, and the establishment of military commissions in which handpicked military judges, not civil courts, try people on the basis of coerced evidence and hearsay. Shutting it down is important. However, we do not know what will be done with the 255 prisoners still detained there. Most of them will probably be sent back to their home countries, or else given asylum if it seems likely that repatriation will result in torture.

But what of others whom the Bush administration asserts cannot be released? And what will be the fate of any new detainees under the Obama administration? These questions should be answered as they have been for 200 years in this country: if there is sufficient evidence, charge them with crimes and have trials in federal courts; if not, release them. Not much will have been accomplished if Guantánamo is shuttered while the practices that underlie it continue. Yet this is being suggested by some who may have Obama’s ear. They argue that holding some terror suspects without trial or charges is necessary. A National Security Court composed of specially appointed judges without juries, using watered-down, minimal due process, would make the decisions.

Suggestions to repackage Guantánamo with a legal gloss must be rejected. Congress would in effect be legitimizing the long-term, perhaps lifelong, detention of people without charging or trying them in federal courts. It would be correctly perceived by the world as a continuation of Guantánamo, would undermine Obama’s pledge to restore our moral standing and would weaken the foundation of one of our most precious civil liberties.

There is no evidence that holding people without charge and trial is necessary. Proponents of preventive detention claim that regular criminal trials cannot work, because the evidence is classified and may have been procured by torture. But classified information is dealt with in federal terrorism trials all the time, through the Classified Information Procedures Act. And evidence procured by torture is inherently unreliable and should never be used in any trial, in any court. A recent Human Rights First study by two former federal prosecutors of more than 120 terrorism trials found that the courts capably handled these cases without compromising national security or sacrificing due process. That conclusion is echoed by judges who have presided over terrorism trials, such as Judge John Coughenour, who concluded that the regular criminal courts are “an adequate venue for trying suspected terrorists” and that it would be “a grave error” to create “a parallel system of terrorism courts unmoored from the values that have served us so well for so long.”

While the supposed advantages of a preventive detention scheme supervised by a special court using specially created rules are conjectural, the dangers of such a scheme are all too real. In the 1970s Britain established special “Diplock Courts” and administrative bodies to preventively detain and try Irish Republican Army suspects; the courts are now recognized as misguided efforts that undermined the liberty and fundamental rights not only of IRA suspects but of the British people themselves.

Shutting down Guantánamo is long overdue. We should not re-create it under another name.

When I awoke this morning I saw the New York Times headline: “Post-Guantanamo: A New Detention Law?” (Nov. 15, 2008)   I was afraid to read the article for I knew what was coming:  some on the Obama team supported by a few liberals were considering a preventive detention law. I had feared this moment for a long time and now here it was.  If you don’t know what preventive detention is just think about Guantanamo: its prisoners are held without charges and without trials.  They are jailed because of their alleged associations or alleged dangerousness.  We have spent long enough, almost seven years, trying to close down Guantanamo, end its unauthorized preventive detention scheme and repatriate its detainees.  Making permanent the disastrous preventive scheme that is Guantanamo, is akin to throwing gasoline on a fire that I hoped was almost extinguished. We must not let it happen.

A preventive detention scheme  would be a disaster for our country. It would send a message to the world that although Guantanamo will be closed, the practices that underlay it will continue.  Elisa Massimino, the executive director of Human Rights First got it right in the NYT:

“Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guantánamo and put us right back in the same dead end we are in now.”

Benjamin Wittes at the Brookings Institution got it dead wrong with his fear of “people being released in the name of human rights and doing terrible things.”   People would not be released in the name of human rights; they would be released because a trial process that has stood us well for over 200 years, found them not guilty. That process is not just about protecting the rights of the accused which is crucial, but is about insuring that we convict the right people not the wrong people, while those who may have committed crimes go free.

Wittes goes on in the NYT article to argue that Americans had to cross a “psychological Rubicon” and accept preventive detention.  That statement, without his realizing it, tells it all. Recall that the Rubicon was the river over which Roman legions were not to cross; they were forbidden in the Republic.  Caesar crossed the Rubicon with his legions and the Roman Republic quickly came to its end.  What Wittes and others fail to recognize is that a preventive detention law is a debasement of fundamental democratic principles and puts us on the path to a police state.

We are seeing preventive detention surface in part because of Obama’s promise to close Guantanamo.  While almost all of the 255 remaining there can be repatriatedor otherwise released to a safe country, the Bush administration claims that a few of them need to be brought to trial.  Obama has promised that these trials will not be the kangaroo military commissions set up and employed by Bush.

Alongside the claims that Guantanamo will be closed in a new administration, and that the sham military commissions will cease, have come proposals that Guantanamo’s closure will require a radical reworking of our justice system in order to ensure that those who the government asserts need to be imprisoned will continue to be held.  Frankly, this is the same assertion that in 2002 created Guantanamo for the alleged “worst of the worst,” without charge or process. 

In 2008, with Guantanamo still evident as one of the most egregious symbols of the excesses of the Bush administration, the new claim is that preventive detention is necessary because in federal trials, prosecutors may not be able to get convictions because their evidence is classified or gained through torture.  There is no reason to believe what the government says on this question.  After seven years of government exaggerations about the men imprisoned at Guantanamo – only 25 [check number] of 775 are facing any charges, and over 500 have already been released without charge, trial or any process at all –it is safer to assume the government is again exaggerating the problems of federal trials to get what they want: a preventive detention law. Indeed, classified information is dealt with in federal terrorism trials all the time. There is a federal statute, the Classified Information Procedures Act, setting up a process for doing so and it has been used in scores, of terrorism trials. That issue is a red herring, and far too much is at stake to fall for it.

As to evidence from torture or coercion, it should not and cannot be used in any fair trial. This means that a prosecutor will need to present independent evidence. Considering that some people have made statements prior to capture and the government’ resources, this should not present insurmountable problems. If there is no such independent evidence, then there is no justification for the indefinite imprisonment in a preventive detention regime based solely on statements made from torture. This is not a reliable basis for imprisonment, and our society is above that.

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.  The decision must be to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.  There is no middle ground.

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.