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.

 

Excerpt of DN! Interview on “Truth Commissions.”    March 5, 2009    http://www.democracynow.org/2009/3/5/lawmakers_begin_debate_on_commission

AMY GOODMAN: Human rights attorney Michael Ratner joins us now in the firehouse studio, president of the Center for Constitutional Rights, author of the book The Trial of Donald Rumsfeld, among others.

Welcome to Democracy Now! I want to talk about the secret memos. Let’s start with this hearing that has been called by Patrick Leahy, chair of the Senate Judiciary Committee, calling for an investigation into Bush administration crimes.

MICHAEL RATNER: You know, I won’t say I’m exactly biased here, but I think essentially that the Leahy commission is an excuse for non-prosecution. It’s essentially saying, “Let’s put some stuff on the public record. Let’s immunize people. And then,” as he even said, “let’s turn the page and go forward.” That’s really an excuse for non-prosecution. And in the face of what we’ve seen in this country, which is essentially a coup d’etat, a presidential dictatorship and torture, it’s essentially a mouse-like reaction to what we’ve seen. And it’s being set up really by a liberal establishment that is really, in some ways, in many ways, on the same page as the establishment that actually carried out these laws. And it’s saying, “OK, let’s expose it, and then let’s move on.”

And he even says, he says what we’re going to do with the truth commission is we’re going to look and see what mistakes were made. I mean, just ask the hundred people who were tortured in the secret sites about what mistakes were made, or ask the 750 people at Guantanamo, or ask the people at Abu Ghraib. This is not about mistakes. This is about fundamental lawbreaking, about the disposal of the Constitution, and about the end of treaties. So I think, actually, that Leahy’s current proposal is extremely dangerous. I call it the lame commission or basically an excuse for non-prosecution.

JUAN GONZALEZ: And you think that there’s no essential difference between him and the Obama—the White House position at this point?

MICHAEL RATNER: You know, I don’t think he would be out there without the Obama administration at least saying this is maybe a way to go. Look at, there’s a lot of pressure in this country right now for prosecutions. I mean, the polls indicate that people want to see a criminal investigation. We’ve had open—open and notorious admissions of waterboarding by people like Cheney. And we know that waterboarding is torture, even according to Obama.

So, how do you diffuse that pressure? And one way you diffuse it is you set up a, quote, “truth commission” that’s going to give immunity to people. And then, as Leahy himself says—the word he used, I think, is that he objects to those “fixated” on prosecution. Well, you know, it’s a legal requirement that you prosecute torturers in your country. And yet, he calls us “fixated” on it and wants to make this excuse. So I think this is, in a way—you don’t know this—but in conjunction with the Obama administration saying, “Let’s do this. It will dispose of, you know, the human rights groups in the world and others. And let’s go forward.”

JUAN GONZALEZ: And your assessment of these latest memos that the Justice Department has released, in terms of the further proof that they show possible criminal actions?

MICHAEL RATNER: I’m glad you said that, Juan, “further proof,” because, you know, we’ve known a lot of this from the beginning. You know, I remember, actually, six weeks after 9/11 writing an article called “Moving Toward a Police State (Or Have We Arrived?)” And we’ve certainly seen the effects of these memos. We’ve seen the military arrest Jose Padilla in the United States. We’ve seen them do that to al-Marri. We’ve seen torture. We’ve seen secret sites. We’ve seen warrantless wiretapping.

But what we see in these memos—and I recommend them to everybody, because you read these, you are seeing essentially the legal underpinnings of a police state or a dictatorship of the president. There’s no doubt about it. That’s what it is, and it’s not theoretical. These were the actual building blocks of what we had in this country for eight years, in which—and the one you mentioned when we opened, Juan, that what happened here was one of these memos said the military could operate in the United States, and operate in the United States despite the Posse Comitatus law, which prohibits the military from operating in the United States. And when it operates—this is really extraordinary—they can arrest and detain—“arrest” is not the right word—kidnap anyone they want and send them to a detention place anywhere in the world without any kind of law.

And then, on top of that, they can disregard the First Amendment. So this conversation we’re having right now, they could say, “Well, this is harmful to the national security of the United States”—that’s what these memos say—“this type of conversation is harmful, and we can ban this conversation.” And then they could put the military at the door to the firehouse and come in and say the Fourth Amendment, the one that protects us against unlawful searches, that the military could walk in here, search all of us and see if we have anything they don’t like on us. So, no First Amendment, no Fourth Amendment, no Fifth Amendment—essentially, the end of the Constitution and 225 years of constitutional history. In the face of this, this kind of memo, we’re seeing Leahy say, “Let’s see what kind of mistakes were made.”

AMY GOODMAN: Why was Posse Comitatus first put into effect, first passed?

MICHAEL RATNER: You know, that’s a good question. I don’t remember, Amy. It’s unfortunate I don’t remember. But it had to do—it goes back to our constitutional—the original convention, I mean, the original Constitution, that one of the biggest fears is that you don’t want the military operating in a democracy, because the military is not trained in constitutional rights. They’re trained to go in and kill and destroy, and that’s what they do in a country. And so, it was really—it came out of really the amendments that said you can’t quarter soldiers in your houses, all those kind—that kind of push that we don’t want the military enforcing law in this country.

AMY GOODMAN: Go on through the memos that have now been released.

MICHAEL RATNER: Well, I said that the key memo is this one that we’ve been discussing, this one that the military can operate in the United States. I mean, as I said, that’s really—you know, I used to talk about Fuehrer’s law when I talked about the President. Everybody thought I’m exaggerating. Fuehrer’s law is what the Fuehrer, Hitler, said; that’s the law. And what these memos do is essentially say that what Bush says is the law. So that’s memo number one.

There’s another memo here on extraordinary rendition. We’ve discussed it here before. That’s where you send people overseas for torture. You nab them or grab them in Pakistan or Afghanistan, send them to another country where it’s more likely than not where they’ll be tortured. And these memos go through why that may—the argument they make is that that’s not against the law, that the Convention Against Torture doesn’t apply and the anti-torture statute, you know, can be avoided by not having the intent to carry out torture. So they essentially authorize sending people—sending people for torture.

Then, two of the memos—and this is pretty interesting—actually concerned Jose Padilla. Jose Padilla, you remember, got off the plane in Chicago, the so-called dirty bomber, never charged with that, and when he’s in the prison, the military comes to the prison door. They knock. Maybe they knock. And they say, “Give us Jose Padilla.” And they grab him. This is in America. This is in the United States. And they take him, and for five years they put him in a military brig. Two of the memos justify and say the President had the power to do that to Jose Padilla, an American citizen living in the United States, that the military could come in—could come in and get him.

Then, a couple of these memos go to what—parts that we haven’t yet seen exposed, which I think will be a broad and vast intelligence effort in the United States, surveillance effort, done by the Department of Defense, under the auspices of these memos, to essentially surveil and look into what all of us are doing in the United States. That hasn’t come out yet completely, but it’s going to be in these memos.

And there’s another memo on the warrantless wiretapping that essentially says the commander-in-chief can carry out warrantless wiretapping as his commander-in-chief power.

And let’s look at what these memos were built on. You know, first you have the question of, are we at war at all? So, first you have this questionable proposition, this questionable proposition that the war against al-Qaeda, so-called war against al-Qaeda, or the global war on terror, is a war at all. Or shouldn’t this be really a legal operation in which people are arrested and charged? So, my position, of course, is this should have been done under law. But so, they first make a questionable assumption about war, and then, once they call it a war, they then say, “Well, the President’s the commander-in-chief, and under war, commander-in-chief power, he can do whatever he wants.” So even if this had been the Second World War, he couldn’t have the power that he’s asserting here.

I have to say that, you know, to see these memos, to put it into that they were actually instrumentalized—this is not just theoretical; this is what was happening here for eight years, essentially a dictatorship—and then to see the response of many of the Democrats here to saying, “Oh, let’s just expose it and turn the page,” I mean, what we’re saying is that’s the way it’s going to happen again, because unless you prosecute people, there is no deterrence for not doing this again. And it’s out there, it’s public. If you’re going to do a commission—and I’m opposed completely to the Leahy type—if you’re going to do one, you can’t bury the issue of prosecution. You have to appoint a special prosecutor and make sure a commission of inquiry works together, because a commission can tear up and finish up prosecutions by giving immunity.

JUAN GONZALEZ: And Michael, the prime author of these memos, John Yoo, what happened to him? He went back for awhile, left the Bush administration, went back to Berkeley, law school, to teach. What’s happened with him since?

MICHAEL RATNER: Well, first of all, I think that these memos, these most recent ones, shred any semblance, any scintilla of reputation that John Yoo ever had that he was, you know, doing something in essentially an honest way. I mean, this finishes his reputation. I think the only—the questions we’re faced with are, is he going to be disbarred, and is he going to be prosecuted?

And it’s interesting. You know, two of the memos, which I didn’t mention, were issued by Steven Bradbury, who was head of the office that John Yoo was formerly in, the Office of Legal Counsel. And those memos are the—they were done within a few weeks of the Bush administration leaving office, in fact, one within a week of him leaving office, essentially, in a relatively mealy-mouthed way, saying he cautions against looking at the Yoo memos, that they shouldn’t—the OLC doesn’t really agree with them anymore. But he has a footnote in there saying—to protect the John Yoos of the world—saying, “I think all of those prior memos,” referring to the John Yoo memos, “were done—did not violate professional responsibility,” because it’s recognized that currently there’s an investigation going on of John Yoo, and I think it’s very—and Bradbury, himself—and I think it’s very likely that that’s going to come out and say certainly disciplinary, if not disbarment, for those guys. So I think Yoo is facing that and, as I said, prosecution.

Now, his geographical travels, of course, have been—as you said, he went to Berkeley, which, as he described a couple of days ago at a speech in Orange County, is made up of a bunch of hippies and radicals. That’s his former law school, or it’s still his law school. And there’s been a push to get rid of him at the law school. I think he finally realizes he can’t stay there, so he’s teaching at some—I guess a very conservative law school in Orange County, which is, of course, the heart of law schools and others that are very conservative. So he’s slowly being cornered, slowly being cornered.

One thing I should say about Yoo and even about the Leahy hearings, the one—you know, while I think they’re a bad idea, I think one thing that could come out of them, which Rivkin, the conservative commentator, made a good point on—he says, “Look at, you’re going to expose the stuff on the record.” And then, while he didn’t use the name of the Center for Constitutional Rights, he said, “Then people are going to be able to prosecute these guys in Europe, because the evidence is all out there.” And that’s correct. As more and more information comes out and these memos come out, we’re going to continue to pursue efforts in Europe and pursue prosecution at home. The Center actually currently has a campaign, if people go to our website, to actually tell Leahy, “This is not enough. We want prosecution.”

AMY GOODMAN: Where is Donald Rumsfeld?

MICHAEL RATNER: Well, you know, he and Rice, right? They’re—you know, what is California? What is it? Like a magnet for right-wingers? You know, they’re both at the—what is it now?—on the campus of Stanford. What’s it called? The Hoover Institution? Yeah. So they’re there, or they’re going there, Rice and Rumsfeld, and they’re going to be some kind of scholars-in-residence at Stanford at the Hoover Institution. And there’s apparently a protest that was starting either yesterday or today objecting to that. So, you know, maybe we can all get them into a corner of Orange County and actually give them their own country and just put prison walls around it. You know, I’m not sure, Amy.

AMY GOODMAN: And are there other countries that are pursuing a possible prosecution against any of these Bush administration officials?

MICHAEL RATNER: Well, I think right now what’s happening is they’re going to wait and see what Obama does. If Obama doesn’t do anything in the next few months, I think there’s going to be a huge push in Europe. At the same time, there is stuff going on in Europe, and that’s—when there’s conduct or illegalities on the country itself, they don’t have to wait for the United States. So, you have an investigation, that we’ve talked about here, in Italy of the CIA agents going on who kidnapped an Egyptian cleric of the street. In Spain, you have a—

AMY GOODMAN: Explain that. You have CIA officers being tried in absentia in Italy.

MICHAEL RATNER: That’s correct. There were twenty-four CIA officers involved in a conspiracy to kidnap an Egyptian cleric off the streets of Milan. There’s an independent prosecutor in Italy who has been running a trial now for probably a year or more, in which testimony is being taken on what those CIA agents have done. I think there’s arrest warrants issued for a number of those people throughout Europe. So that’s one relatively successful effort in Italy. And again, if you look at it, they actually kidnapped someone and violated the sovereignty of Italy, so they went after them.

Spain, likewise, has an investigation going on with a court, a judge, because the rendition flights landed in Majorca, they landed in Spain. And so, Spain looked, and its territory has been violated. So that’s going on.

But I think, overall, what we’re seeing here is—I mean, from my perspective, we’re seeing actually more push for prosecutions than I actually expected, that the American public, it seems, is not really giving the sort of Obama line, “Let’s look forward and not backward.” Of course, to me, prosecutions is looking forward, because that’s how you prevent torture in the future. So I think we’re seeing a much greater push. I do think, though, that, as I want to say, that the combination of the memos and Leahy should just really send a message to America that we’ve got to make these guys accountable.

JUAN GONZALEZ: What about the—do you have any hopes for any more independent investigations going on in the House at all? Or in—

MICHAEL RATNER: Oh, I think that’s a good question. You know, I think Conyers has a better take on this than Leahy. Conyers does want a commission or an investigation set up, but his material also talks about accountability and prosecutions. I think if you had a commission here—not a commission; I would never call this a truth commission. I mean, this is not—this is not South Africa. This is not, you know, an emerging democracy from, you know, Chile or something. This is—supposedly was a functioning democracy. In that case, you don’t need, quote, “a truth commission.” What you need is a commission of inquiry that’s going to lead to prosecutions. And I think that’s much more what Conyers is looking for. I’m sure he’s in favor of prosecutions. And, you know, there’s a huge effort, a grassroots effort, out there, as petitions—hundreds of thousands of people have signed this stuff.