Saturday, May 30

Petraeus Stands Tall against Torture - On FOX!

Via Thinkprogress.

In his support of Obama's order to close the Dentention Center at Guantanamo Bay, Cuba

PETRAEUS: Gitmo has caused us problems, there’s no question about it. I oversee a region in which the existence of Gitmo has indeed been used by the enemy against us. We have not been without missteps or mistakes in our activities since 9/11. And again, Gitmo is a lingering reminder for the use of some in that regard.

Petraeus knocks down one by one all of the arguments by the Hair-On-Fire crowd that we'll have "Terrorist on our Streets" if not for Good Ole' Gitmo.

He also clearly acknowledges that the U.S. did violate Geneva, and hence did commit War Crimes.

PETRAEUS: What I would ask is, does that not take away from our enemies a tool, which again they have beaten us around the head and shoulders in the court of public opinion? When we have taken steps that have violated the Geneva Convention, we rightly have been criticized. And so as we move forward, I think it is important to again live our values to live the agreements that we have made in the international justice arena and to practice those.

Fox News-Model:What about the concern that because of some of the treatment of (some) detainees, if tried in U.S. courts, they could go free?

PETRAEUS: I don't think we should be afraid to Live our Values - it's what we're fighting for.

The importance of this perspective can't be understated, particularly with the corroborating arguments from General Taguba, who personally investigated Abu Ghraib.

Maj. Gen Taguba saw the horrors first hand during his Abu Ghraib investigation and he believes the Bush administration is guilty of war crimes.

In a preface to a report by Physicians for Human Rights on prisoner abuse and torture in U.S. military prisons Taguba wrote: "There is no longer any doubt that the current administration committed war crimes. The only question is whether those who ordered torture will be held to account."

With both of these Military commanders, the top commander in both Iraq and Afghanistan, and the Chief investigator into the biggest military Scandal in a generation both clearly stat Geneva was violated and War Crimes Committed the ability to avoid a full-on War Crimes inquiry becomes more difficult and the likelihood of a conviction considering witnesses of this calibre - grows exponentially.


Friday, May 29

Bob Shrum Punks Pat Buchanan on Racism and Sonia Sotomayor

'Nuff said, pure poety.


These are NOT the pictures you're looking for...

In the last day quite a bit of hubbub and hullaballo has surfaced over a Telegraph UK report that alleges the reason that Obama did not release the latest set of Abu Ghraib pictures is because they depicted the Rape of Children.

I myself have helped share links to this story, but last night I read something which contradicted and to some extent corrected that story from, oddly enough, Jason Leopold.

Jumping more than a bit ahead of the gun a dog's age ago, Leopold has once claimed that Karl Rove was about to be arrested on Fitzmas. He wasn't, but Jason may have learned a lesson or two about verifying sources.

All that is now just another liter of blood under the bridge...

In this case he is addressing detailed descriptions of the pictures requested by the ACLU via FOIA which Obama recently denied. (BTW, Obama's isn't the last word on that subject - it could still go to SCOTUS)

U.S. Army soldiers in Afghanistan took dozens of pictures of their colleagues pointing assault rifles and pistols at the heads and backs of hooded and bound detainees and another photograph showed two male soldiers and one female soldier pointing a broom to one detainee “as if I was sticking the end of a broom stick into [his] rectum,” according to the female soldier’s account as told to an Army criminal investigator.

I found the documents that describes many of the photographs that were set for release at the end of the month on the website of the American Civil Liberties Union. The ACLU has been trying to gain access to the photographs for nearly six years. The ACLU obtained the files describing the pictures in 2005 as part of the organization’s wide-ranging Freedom of information Act lawsuit against the Bush administration seeking documents related to the treatment of “war on terror” prisoners in U.S. custody.

About 31 digital photographs contained on a compact disc discovered in June 2004 during an office clean-up at Bagram Airfield also depicted the corpse of “local national” who died from “apparent gunshot wounds” and uniformed U.S. soldiers from the Second Platoon of the 22nd Infantry Battalion stationed at Fire Base Tycze and Dae Rah Wod (DRW) kicking and punching prisoners whose heads were covered with “sand bags” and blindfolds and hands were “zipped-tied,” according to a U.S. Army criminal investigation. The documents related to that investigation can be found in these five separate files: [Part 1] [Part 2] [Part 3] [Part 4] [Part 5].

The female soldier with the broom handle is further addressed in the report as merely posing with the handle in a suggestive position, not actually attacking a detainee with it.

After reading this I tweeted with Jason to ask him about it.

Vyan1 @JasonLeopold These Docs don't seem to describe the same pics referenced in the UK Taguba interview #DNJ

JasonLeopold @Vyan1 that's because the telegraph report is wrong. The photos being withheld are specifically related to a lawsuit involving 43 photos.

JasonLeopold @Vyan1 there is no question that these photos exist but these were not the photos at the center of the lawsuit between Bushies and the ACLU.

You don't even have to trust me or Jason, the documents - linked above - speak for themselves.

Obama didn't suppress pictures of children being raped (Not that I personally would actually blame him if he did since if you truly want to see a Unrelenting Firestorm of resentment in the Arab would - THAT would do it!)

This may be why - and here I'm admittedly speculating the way the Telegraph did - both Gibb's and the Pentagon felt so free to simply attack the Telegraph's reporting and completely avoid addressing the issue of the Rape pictures themselves. (Then again, without the pictures and documents in hand speculation is inevitable...)

Simply put: IMO These are NOT the pictures we're looking for...

But this doesn't mean that the Telegraph UK is completely wrong, in all likelihood those horrid rape picture *do* exist as they've been backed up by other sources such as Sy Hersch, the Physicians for Human Rights Report and General Taguba.

Gen. Taguba: there is no longer any doubt as to whether the current (Bush) administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.


Thursday, May 28

Children were Raped by U.S. Soldiers, General calls them War Crimes

Allegations of children being raped to force their parent to give information have long been alleged by award winning journalist Sy Hersch (Video) but now a report via the Telegraph UK reveals that this allegation is true, and that their were even pictures.

Abu Ghraib abuse photos 'show rape'
Photographs of alleged prisoner abuse which Barack Obama is attempting to censor include images of apparent rape and sexual abuse, it has emerged.

At least one picture shows an American soldier apparently raping a female prisoner while another is said to show a male translator raping a male detainee.

Further photographs are said to depict sexual assaults on prisoners with objects including a truncheon, wire and a phosphorescent tube.

Another apparently shows a female prisoner having her clothing forcibly removed to expose her breasts.

Detail of the content emerged from Major General Antonio Taguba, the former army officer who conducted an inquiry into the Abu Ghraib jail in Iraq

Instead of coming from some radical Human Rights organization, this information is coming from a former U.S. Army General, the man who headed the investigation into the Abu Ghraib scandal - and was prohibited from looking at the involvement of higher-ups in these crimes.

Is it rather interesting that John Yoo publicly and specifically argued that *THIS WAS LEGAL*.

John Yoo publicly argued there is no law that could prevent the President from ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.

This came out in response to a question in a December 1st debate in Chicago with Notre Dame professor and international human rights scholar Doug Cassel.

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

Yoo: No treaty.

Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.

Yoo: I think it depends on why the President thinks he needs to do that.

Geneva doesn't prevent that although it says there will be NO AFFRONTS TO PERSONAL DIGNITY or threats against the family of a detainee? The UN Convention Against Torture doesn't prevent that? 18 USC 2340 (The Torture Statute) and the 18 USC 2441 (The War Crimes Statues) don't outlaw this?

If so, then nothing is outlawed.

The Memo in question is Here (pdf), in it Yoo argues essentially that the Torture Statute only applies if you intent is to "cause severe physical harm" - but if you have some other reason/excuse, the law doesn't apply.

The infliction of pain must be the defendants precise objective.

Although the Torture Convention specifically argued that purposes of "pain inflicted for such purposes as obtaining from him or a third person a confession of information... is prohibited" - Yoo tries to argue this away with the argument that words "specifically intended" are included within the ratification documentation of the treaty as approved by Congress.

He argued that since the intent was to gain information or cooperation from the subject, or even a third party as opposed to the simplistic sadistic goal of causing pain for it's own sake, it's legal.

Rob bank and keep the money = Illegal. Rob a bank and give the money to charity = Legal. Rape a child for shits and giggles = Illegal. Rape a child to get their parents to infiltrate the insurgency and report back to you = Legal.

Get it?

And since Yoo put this view into a memo and it was stamped as valid by the Justice Deptartment, it's pretty hard to argue complete ignorance when exactly what he wrote - is what happened in Iraq.

Maj Gen Taguba’s internal inquiry into the abuse at Abu Ghraib, included sworn statements by 13 detainees, which, he said in the report, he found “credible based on the clarity of their statements and supporting evidence provided by other witnesses.”

Among the graphic statements, which were later released under US freedom of information laws, is that of Kasim Mehaddi Hilas in which he says: “I saw [name of a translator] ******* a kid, his age would be about 15 to 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard screaming I climbed the door because on top it wasn’t covered and I saw [name] who was wearing the military uniform, putting his **** in the little kid’s ***…. and the female soldier was taking pictures.”

Let me point out again, that various prior memos by Yoo claiming that Geneva didn't apply to the Taliban or al Qaeda were never written or amended to include civilians detained in Iraq who very clearly would be covered by Geneva and any actions such as these would clearly be - a War Crime!

General Taguba agrees:

Maj. Gen Taguba saw the horrors first hand during his Abu Ghraib investigation and he believes the Bush administration is guilty of war crimes.

In a preface to a report by Physicians for Human Rights on prisoner abuse and torture in U.S. military prisons Taguba wrote: "There is no longer any doubt that the current administration committed war crimes. The only question is whether those who ordered torture will be held to account."


Wednesday, May 27

O'Donnel(s) PWN Buchannan on Racism - Again

I'm watching MSNBC right now and Pat Buchanan is debating Lawrence O'Donnel on the Sotomayor nomination. Buchanan's position, not surprisingly, is the fact that she must have been an "Affirmative Action Pick" because the top four persons up for consideration were all women.

At one point Nora O'Donnell challenges Pat...

What if there weren't any White Males as qualified as these women?

And Lawrences counters with

What if there were only White Males in the Top Four, would That have been the result only of discrimination? You're like a dead fish on this issue, just flopping around aimlessly..

The irony here is that earlier this week, Buchanan had made exactly that claim in regards to the New Haven Firefighter Case, claiming that the fact that all of those that passed being white (and a few hispanic) was "natural" and to challenge the complete exclusions of all black applicants was "Reverse Racism".

The entire view that if the winners of a contest aren't white/males - It has to be Racist Affirmative Action, but if it winners are nothing but white/males - It has to be Merit! - is at the heart of Buchanan's Supremacist Conceit.

The core of the New Haven case was the fact that the City threw out the results of a test to avoid a possible Disparate Impact lawsuit. Now the concept of disparate impact is the idea that some tests which may appear racially neutral may in fact be hiding or disguising some hidden bias and the only way to undercover it is to watch and determine if the results create a completely unfair and illogical result.

Rather than go forward, the City of New Haven went back and did the test again - that's all. It doesn't argue that those who didn't pass the test should be granted "extra points" or given a pass simply because they were black, all it required was a racial neutral Do Over.

At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions--among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm'n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

This was previously discussed on Hardball with Pat.

Buchannan whines about the Bakke case, well Bakke WON THAT CASE and as a result all quota systems in Affirmative Action have been banned as unconstitutional since 1978! The only way to implement any kind of "Quota System" is as the result of a Guilty Finding in a Discrimination Suit or a Concent Decree as punishment for Current - no past or historical - CURRENT acts of discrimination.

In other words you have to give back the jobs and promotions that were illegally refused or taken. This would also apply in the case of the New Haven Firefighters if it was found that they were illegitamately denied their rightful promotions. Or vice versa if the opposite were the case.

Quotas have been banned for 31 Years So what's his problem now?

Sotomayor's finding, along with the other judges in that case, was that existing case law in the 2nd District was controlling and didn't allow them to reinstate the original results.

He clearly believes that a minority person couldn't have possibly been able to compete and win - without some special help, while simultaneously ignore the "special help" that white males give each other on a regular basis which occurs largely because of their own cultural socialization.

The video isn't up yet.. but here's an old conversation with Pat and Rachel on the Geraldine Ferraro flap, which was very similar in the presumption that a Black Men get special "priviledge" in this nation.

So here's the question, why is it all the white guys lose - it's gotta be an unfair test, but if all the black guys lose, it's "Reverse Racism" to complain about it and even question the fairness of the test?


Tuesday, May 26

The Right Goes Ballistic over Sotomayor Nomination

It's Day One of Obama new Supreme Court Nomination and Rush Limbaugh has ALREADY called Sonia Sotamayor a Reverse-Racist!

After all the furor over the claims by Janeane Garofalo that the "All the Tea Party Protestors were Racists" because they choose to ignore Bush and only became frustrated with spending when Obama became President - we know have Limbaugh using Sotomayor's comment about the Appelate Court establishing policy (which is true, but only within their jurisdiction, and can clearly be overturned by SCOTUS) as a Racist Statement.

What she actually said was this.

SOTOMAYOR: I -- from my answer earlier, I don't -- doing either is going to get you a whole lot, so you don't make a mistake in whatever choice you make. But there is a choice. The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did.

All she was doing was contrasting what the District Court does versus what the Appellate Court and Supreme Court does - at the District they're only thinking about the case in front of them, at the other levels their thinking about precedent and the ultimately ramifications of their decision on other similar cases within the structure of case law. That's just factually true...

But not to Limbaugh who also said this...

* "She is a hack like he is a hack, in the sense that the court is a place to be used to make policy -- not to adjudicate cases, not to adjudicate constitutional law, but to make policy."

* "I mean, do I want her to fail? Yeah. Do I want her to fail to get on the court? Yes -- she'd be a disaster on the court."

* "You know, Obama talks about 'we need people with empathy.' It's not even about empathy, folks; that's just cover. He just wants one of his own on the court to do his dirty work from the highest court in the land, and she fits the bill."

But this is where he really hammered Sotomayor on the Racist Charge.

: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Rush offered his thoughts on this: "So here you have a racist. You might want to soften that, and you might want to say a reverse racist. And the libs, of course, say that minorities cannot be racists because they don't have the power to implement their racism. Well, those days are gone, because reverse racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse racist, and now he's appointed one."

The core of her statement - was about the "richness of (ones) life experience", and recognizes the reality that different people do have different experiences and that those can - and potentially should - give some context to the consequences of their court decisions. It was simply about race or gender - but about about LIFE.

Naturally Limbaugh misses the point by the Kentucky Mile.

Here's some clips from Young Turks which carefully deconstructs many of the attacks against Sotomayor on the issue of her "Intellect" and being a "Single Latina".

She's been on the Federal bench for 17 years, graduated Suma Cum Laude from Princeton as was 2nd in her class, then went on the become editor of the Yale Law Review - and they think THIS person isn't qualified enough? They think she's a dumb latina single mother - named "Maria" like the girl from West Side Story?

It's pathetic how badly they project. This is Day-One of the nomination and I franky haven't had a change to develop and opinion on this nominee one way or the other, but for Pete's sake lets evaluate based on facts, not just anti-Liberal "Activist Judge" Hysteria.

As it turns out the most "Activist Judge" on the Supreme Court, the one who has "overturned the will of the people and the law as written by Congress and effectively Legislates from the Bench - is Clarence Thomas.


Gen David Petraeus : Close Gitmo, Torture is Wrong

Pretty simple, pretty straight forward - GITMO gives our enemies and easy way to recruit and so does Torture.


Sunday, May 24

Obama's Right: A Preventive Detainee is simply a P.O.W.

Quite a bit of negative commentary, particular from attorney's such as Jesselyn Raddack and Glenn Greenwald has come down in stomp-footed opposition to Obama's plan to implement "Preventative Detention", meanwhile those on the Right continue to pull their hair out over the idea of "Terrorists released on American streets".

Both positions may in fact be an extreme over-reaction, while Obama's own Solomon-like path of splitting the difference may actually be our nation's only real choice under Geneva, the Constitution and the Law.

First we have to recall where have previously been to better understand where Obama is going. Under President Bush, the protections of Geneva were blatantly rejected by executive fiat. This meant that the tenets of the Army Field Manual, which were based on Geneva were undermined and our troops left without a coherent detention strategy leading to widespread abuses at Bagram A.F.B. and throughout Iraq. Eventually The U.S. established a set of secret detention centers specifically intended to avoid the Geneva mandate of oversight by the International Red Cross, where a program of coercion and torture was implemented to get the answers the Administration wanted, particularly concerning links between Saddam Hussein and 9-11.

In 2006 the Supreme Court overruled Bush's claim that Geneva did not apply with the Hamdan v Rumsfeld decision which meant that all of the previous actions of the Administration at the CIA Black Sites and elsewhere could now fall under 18 USC 2441 for War Crimes prosecution. Bush responded by closing the illegal Black Sites and moving their detainees to GITMO, then quickly pushing through the Military Commissions Act which revoked the protections of habeas corpus for "Alien Enemy Combatants", allowed the use of coerced and self-incriminating testimony (gained via torture), and via "hearsay" in a new Military Commission Trial System.

In 2008 the Supreme Court just as they has previously restored Geneva protections, restored Habeas Corpus to detainees and invalidated Section 7 of the Military Commissions Act with the Boumedian v Bush decision. It held in restoring habeas that...

“to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is'.

So unlike what was claimed by Bush, Obama finds himself in a landscape that must abide not only by the Constitution and Geneva but also Habeas for all detainees.
least of all indefinitely without the option of Habeas Review by a court.

In light of these realities Obama outlined five possible options for the disposition of current GITMO detainees.

1. Transfer to U.S. Civilian Courts for Trial.

This option in the past has led to the successful prosecution and incarceration of Ramzi Yusef (The Original WTC Bomber), the "Blink Sheik", Zacarias Moussaoui (The "20th" Hijaker"), Timothy McVeigh, Eric Rudolph (The Olympic Park Bomber), and Ted Kasczinki (the Unibomber) all of whom are being currently held at the Florence Supermax Correctional Facility in Colorado.

No One Has Ever Escaped from a Supermax.

On April 30, 2009 Ali Saleh Kahlah al-Marri, who had been held for the previous six years at the Naval Brig in Charleston without charge, pleaded guilty to charges of conspiracy and terrorism after being transferred by the Obama Administration into the civilian courts and is now being held at the Federal Facility at Pekin, Illinois awaiting sentencing.

The Obama administration plans to follow this trend by bringing charges against another al Qaeda suspect for the 1998 East Africa bombings which killer over 200 Americans.

Despite all the frenzied chest beating, this option has worked fine. America has the best prison system in the world, and is already holding al Qeada inmates - adding another hundred or so is not going to end civilization as we know it.

2. Try Suspects as War Criminals in Military Court

Unlike those who may have committed crimes against Civilians and Non-Combatants, it seems perfectly appropriate to try those who have perpetrated crimes against our troops on the battle field, or civilians in a war zone. Some may say that "there are no Rules in War" however the fact is there have been very clear and definite rules since the Ratification of Geneva in 1949. Under Geneva these would include...

"violations of the laws or customs of war"; including but not limited to "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".

A Courts Martial of Military Criminals is entirely appropriate if the circumstances warrant, and as Obama has noted the previous flaws from the Bush Military Commission System will not - and frankly CAN NOT vis SCOTUS - be included.

The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Now, some have suggested that this represents a reversal on my part. They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.

I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making. Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law. We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.

3. Detainees who have been ordered to be released by the Courts

Amazingly some on the right would argue that the Adminstration ignore a Court Order to release a detainee against whom the evidence is insufficient. Obama has rejected that view.

Now, let me repeat what I said earlier: This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office. I cannot ignore these rulings because as President, I too am bound by the law. The United States is a nation of laws and so we must abide by these rulings.

Whether GITMO stays open or not, these 21 people must legally be released - the problem for some of them however is "to where"? A problem which still plagues the Uighurs, Chinese Muslims who would most likely face persecution if released to that nation but like Boumedienne - a Serbian who was ultimately released to France - an alternative arrangement may eventually be made available. Which leads to the next category.

4. Transferral of Detainees to other Jursidictions.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

This isn't setting them free, Bush did this with numerous detainees such as Ibn Shayhk al-Libi who was transferred to Egypt and eventually to Libya. He also rendered innocent persons such as Abu Omar and Maher Arar who was transferred to Syria. The difficulty here is that both Omar and Arar were completely innocent and actually apprehended by mistake - and all three individuals were tortured in those countries. Like the case of the Uighurs simply shipping people off to other countries without careful thought or planning could prove disastrous, but extradition is an option that should clearly be pursued and could be successful with careful planning.

And then there is the most controversial category.

5. Detainees who can not be prosecuted, but remain AT WAR with the United States

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

In the most simple terms, these people are Prisoners of War and can potentially be held "until hostilities cease". The controversy here is that this is war the in some ways can not be either one or lost, ever. As Glenn Greenwald argues...

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a "combatant" was thus minimal. By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets.

I think that Greenwald, and I am frankly loathe to disagree with Glenn as I respect him greatly and consider his work an inspiration for my own, is just simply wrong here. At the beginning of any armed conflict, it is never really known exactly when hostilities will end. Israel has essentially remained in a constant state of war for decades. The "Troubles" in Northern Ireland were of a similar extended nature.

It should also noted that nearly two years ago in 2007 the newly minted commander in Afghanistan, Gen McChrystal officially announced that al Qaeda in Iraq has been Defeated. Iraq still has lots of problems but that conflict has ended. Abu Musab al-Zarqawi, the head of AQI, is dead.

There may indeed be a point in time where this may also be true of Senior Leadership of Al Qaeda in Pakistan and Afghanistan, where they are either captured or killed and their ability to function as an effective international terrorist enterprise is diminished to point of irrelevance. In fact - This Should be Our Goal. The difficulty in attaining that goal should be lost on no-one, but neither should it lead us to making choices that defy common sense and allowing enemy assets to return to the battlefield during an active conflict.

The second part of his assumption I think ignores both Obama's specific comments and the reality of the situation is that these would not be people "picked up from their homes, at work, or off the streets" since these locations can not honestly be called the "battlefield." Those people would be, and should be handled as criminal suspects and processed through the civilian courts as Obama describes under option 1.

What we're really talking in this scenario would be Taliban, Al Qeada and Insurgent fighters who have been caught on the battlefield, planting IEDs or otherwise in the act of attacking our troops. Again the case of Insurgents is also instructive here. as at one point we would have never considered the idea of a cease fire let alone open cooperation with those who had previously been fighting with in the Sunni Triangle. Today things are different, and consequently the Military need to hold these prisoners would similarly change over time.

Also the greatest protection against possible abuse of this policy, would be to ensure that the decision does not rest in just one set of hands just as Obama has described.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category.

President Bush reserved the sole right to pluck someone off the street, even an American Citizen such as Jose Padilla, and hold them without charge or without judicial review.

Those days are over.

Any potential Prisoner of War or detainee under Boumedienne must now be afforded Habeas review, even if the Administration thinks they may remain an "ongoing threat" they're going to have to provide some evidence of this assertion before a court although evidence of a specific civilian or war crime on their part may be either lacking or tainted.

Further as a result of the precedent set by Hamdan (although the SCOTUS offered no opinion on this point), it could be argued that Geneva protections should also apply and before the administration could even relegate someone to P.O.W. status they would need to have this confirmed by a Competent Tribunal under Article 5.

Under U.S. military regulations, a Tribunal would be composed of:

Three commissioned officers; a written record of proceedings; proceedings shall be open with certain exceptions; persons whose status is to be determined shall be advised of their rights at the beginning of their hearings, allowed to attend all open sessions, allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal, and to have a right to testify; and a tribunal shall determine status by a preponderance of evidence.[2]

Possible determinations are:

1. Enemy Prisoner of War.
2. Recommended Retained Personnel (RP), entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP.
3. Innocent civilian who should be immediately returned to his home or released.
4. Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained

Bush had previously established "Combat Status Review Tribunals" to fill this requirement, but studies by the Seton Hall found the 92% of GITMO detainees were not in fact "Enemy Combatants" and that the Bush CSRT were essentially Kangaroo Courts biased to find guilt in nearly all cases. Ultimately Boumedienne invalidated the Bush CSRT process, so a new, and fair process in line with Geneva and the Code of Military Justice needs to be constituted. One which mandates periodic status review updates for all persons ultimately declared as having P.O.W. status for the ongoing War as circumstances within that conflict continue to shift and change overtime. Think of it as a "parole hearing" to determine if the person remains a threat and either repatriate or retain them as appropriate. This would not be the Obama Administration's decision, but one based on the available facts and circumstances at the time by an independent judge or judicial panel on a case by case basis.

In short "Preventative Detention" of a P.O.W. might not ultimately be Permanent Detention nor should be it something that any President or Administration should be able to legally implement without oversight from the courts or Congress. Doing this may require a new POW or Military Tribunal Act, but it can be done. Russ Feingold is already demanding hearings and testimony based on Obama's Speech.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.
Feingold's concerns aer well founded considering the history of Bush Administrations handling of detainees, but the U.S. has held prisoners of war without charge and without trial in every war that we've engaged in since the formation of the Union. It doesn't mean they'll be held forever, it does not violate the law, the constitution or Geneva, but it will need to be done with the consultation and understanding of Congress.

With rational and legal protections in place, we can ensure a framework which both protects the rights of the accused from unwarranted and unreasonable detention and protects the American people from those who would continue to wage violence and war against them through the weapons of terror.

It's not a Hobson's Choice of protecting Americans vs protecting Terrorist Suspects, we have to do both - protect the innocent (all of them) as well as punish the guilty using the best legally obtained evidence and facts.