Saturday, March 14, 2009

Defending Rumsfeld? The Obama DOJ marches on...

I'm trying to parse out just what principles the Obama/Holder DOJ is standing up for, as it continues to make the same arguments that Bushco made, now adding Don Rumsfeld to the list of officials it is defending.

From The Raw Story:

In a brief filed Thursday evening, Obama Justice Department lawyers extended many of the same arguments made by Bush attorneys -- that top government officials have qualified immunity from prosecution and that Guantanamo detainees do not have constitutional rights to due process.

The Department of Justice has asserted that a Supreme Court ruling reaffirming the rights of Guantanamo detainees to habeas corpus does not apply to plaintiffs in a case against former Secretary of Defense Donald Rumsfeld because the plaintiffs were released from prison four years prior to the Supreme Court's decision.

"It is fair to say that the current brief that is filed by the new administration supports a lot of the arguments that were made by the previous administration," said Kate Toomey, an attorney with Baach Robinson & Lewis who is representing the former detainees in an interview with RAW STORY. "They continue to assert that torture was in the scope of employment and could be reasonably expected. They continue to assert that these [top officials] be entitled to immunity. They also continue to argue that detainees at Guantanamo don't have constitutional rights."

The brief was filed as part of the Rasul v. Rumsfeld lawsuit of four former detainees, who include the "Tipton Three," and are seeking damages for their detention and reported torture at Guantanamo Bay against Rumsfeld, the Chairmen of the Joint Chief of Staffs and other top military officials. The suit charges them with violations of the Fifth and Eighth Amendments, the Alien Tort Statute, the Geneva Conventions and the Religious Freedom Restoration Act. The plaintiffs are individually each seeking $10 million in damages.

The men were held for more than two years at Guantanamo where they were reportedly subjected to regular beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point and religious and racial harassment. They were never charged with any crime. The men were released in March 2004 and returned to their home country of Britain.

This, at about two months in, is the paradox of the Obama administration: while moving to undo Bushco policies with regard to many regulatory issues, they continue to go to court with Bush-era legal arguments in defiance of basic Constitutional law.

Here's a summary of the questionable positions they've taken with regards to torture, human rights, or related issues:

_The administration has filed a legal brief that echoed Bush in maintaining that detainees in Afghanistan have no constitutional rights and arguing that enemy combatants held at Bagram Airfield cannot use U.S. courts to challenge their detention.

_Government lawyers continued to invoke the state secrets law in a federal court case that involves the CIA's extraordinary rendition program, in which U.S. operatives seized foreign suspects and handed them over to other countries for questioning. The law blocks the release of evidence the government deems secret and potentially harmful to U.S. security.

_The administration is feeling out Uzbekistan, which has one of the worst human rights records among the former Soviet republics, about using an air base to provide supplies and troops to Afghanistan. The move became necessary after neighboring Kyrgyzstan declared it was canceling the U.S. lease for a base in that Central Asian country.

_Defense Secretary Robert Gates recently greatly scaled back expectations in Afghanistan, declaring the United States was not going to be able to leave behind anything close to a western-style democracy. The U.S. rationale for its seven-year engagement in the country rested partly on having driven the Taliban from power. The Islamic fundamentalists ran a brutal regime that was particularly harsh in its treatment of women. The administration has recently said it was ready to reach out to Taliban members who are willing to work with the U.S.-backed government of President Hamid Karzai.

The Bagram stand, which effectively allows the administration to practice selective denial of human/constitutional rights to detainees, and the invocation of state secrets in the rendition cases are particularly troubling, but--viewed in its totality--the distance between President Obama's rhetoric and the reality of his Justice Department's positions is puzzling.


Anonymous said...


I regards to the 4 points, in order:

- Is adherence to the Geneva conventions adequate? Do you think that prisoners of war should have Constitutional rights and access to U.S. judicial review over and above the right to humane treatment as specified by the Geneva convention?

- Are there such things as state secrets that the government should have the power and obligation to protect?

- "feeling out Uzbekistan" - what doe that mean? It could be a good thing or could be a bad thing for human rights in that country. We don't know yet.

- Who lost in the war in Afghanistan by going into Iraq? What would you do? Is telling the truth about there current expectations wrong?

Your continuing complaints that Obama, Holder, Pannetta, and Gates haven't perfectly sorted out 8 years of bad policy and implementation in 7 weeks is getting old, even after only 7 weeks.

If you can't see at least some improvement, it only is because you don't want to.


Anonymous said...

BTW, since Bagram Airfield seems to be such a hot topic here relative to human rights abuses, it is worthwhile to mention that:

The International Committee of the Red Cross "has been visiting detainees at the US-run Bagram military airbase (Bagram Theater Internment Facility) since January 2002. Most of the detainees are Afghans captured by the US-led coalition in southern and eastern Afghanistan. Currently the ICRC is visiting around 600 detainees at Bagram BTIF. At the beginning of 2008, the ICRC was also granted access to detainees at several US-run field detention sites in Afghanistan, where people are often held before being transferred to the Theater Internment Facility."


Tyler Nixon said...

The essential individual rights (in the Bill of Rights) that our constitution obligates the government to protect are human rights, in my view.

This is especially true in any act of the state that could, would, or does result in the actual physical denial of liberty.

The denial of due proces, and I mean SUBSTANTIVE NOT MERELY PROCEDURAL DUE PROCESS, to any human being held or facing incarceration at the hands of the state is the work of a lawless and arbitrary government.

Any agent of the United States government who could argue that due process is not owed to any human being subject to that government's actions is fundamentally misguided and arguably in breach of their oath of office, at very minimum.

Steve Newton said...

A partial answer (it's basketball tournament day for the kids):

1) We are denying Geneva convention rights a Bagram because we have claimed the detainees there are not POWs; moreover, we have used Bagram to ship in prisoners taken other places (including, it seems, the US) specifically to deny them due process rights.

2) The "state secrets doctrine" in use here has nothing to do with whether or not there should be classifed material (which I have handled). It is a legal doctrine that allows the government to prosecute people and selectively deny the accused the right to confront witnesses or see potentially exculpatory evidence. Moreover, both the Bush and Obama administrations have held that no other branch of government has any power to oversee its decision of what should be secret.

3) Right now I'll give you Uzbekistan (I originally intended to cut that one out of the post, but was in a hurry)

4) The point there is not about "telling the truth," as I maintained in a previous post you did not comment on, it is the fact that after strong-arming the Karzai government into recognizing basic rights for women, we have now raised the issue of negotiating with the "moderate" Taliban and have provided no assurances to the women of Afghanistan (who, currently, by constitution, are at least 25% of the legislature) that they will be represented at the table or protected in the outcome.

You continue either to miss my point (genuinely) or to misrepresent it (intentionally) via the Obama DOJ. It has nothing to do with "sorting out," it has to do with continuing to use discredited and constitutionally flawed arguments from the previous administration. Nor am I, by a long shot, the only person raising this issue.

Have there been improvements, and have I noticed them? You haven't been reading carefully. I praised Obama for moving to close Gitmo, and I praised the Panetta pick because he had previously been voluble about "no torture." I praised Obama when he floated the idea of placing Israel under our nuclear umbrella. I praised the administration for releasing the Bush-era torture memos. So your accusation that I am unwilling to see progress is simply not true.

But I refuse to cut this or any other administration a break on human rights, constitutional protections, torture, or the protection of those officials who have plainly violated these strictures.

As for the Bagram IRC visits, you need to read the results of those visits, and the reports of the shell games the US played with the prisoners that the IRC was not allowed to see, as well as the reports that in 2002 or 2003 we "interrogated" at least two prisoners to death.

I'll put it back in your court: if you cannot see at least some disturbing continuities with some pernicious Bushco policies, it is only because you don't want to.

Anonymous said...

Hi Steve,

I don't know that you have evidence that the U.S. under the current administration is denying Geneva Convention rights at Bagram. Have your read and IRRC reports since February 2009? Clearly, policy decisions are being made as to how to move forward as evident, for example, by the Obama administration's decision to drop the term "enemy combatant."

If you agree that the government has the right to "state secrets," than aren't the courts the place to determine the reach of those powers when there is a conflict? Personally, I think there is WAY to much classified material, but I also understand the concept of "sovereign immunity" which extends way back to British law.

In regards to Afghanistan, I think that the story there is a LONG way from over, and I can't imagine that Obama will hand it back over to the Taliban or not do everything that he can to protect women's rights there. Again, I think 7 weeks into his admin is way too early to judge.

I could not agree more with your declaration "But I refuse to cut this or any other administration a break on human rights, constitutional protections, torture, or the protection of those officials who have plainly violated these strictures." But I also think that we need to be somewhat realistic and pragmatic in evaluating what progress can be made in 7 weeks.

And, you bet, I see lots that I don't like about the Obama administration, particularly in regards to prosecuting those who broke the law in previous administrations. I wish that he'd asked that Bush and Cheney be arrested on the Inaugural platform right after he was sworn in!

I also share Tyler's sentiment about denial of human rights and due process under any circumstances by any government. Unfortunately, we won't get there until every soldier in every country refuses to kill other human beings because their government tells them to do it.


Steve Newton said...

If you agree that the government has the right to "state secrets," than aren't the courts the place to determine the reach of those powers when there is a conflict? Personally, I think there is WAY to much classified material, but I also understand the concept of "sovereign immunity" which extends way back to British law.

That's the problem: the Obama administration has taken the position that the courts DO NOT have the right to determine the reach of those powers.

Here's the news report from a post (link below) I did a couple of weeks ago:

Late on Friday, the Justice Department’s lawyers filed a brief with a federal district court in California challenging the court’s power to carry out its own order. The government lawyers insisted that the court has no right to make available to the opposing lawyers in the case a classified document regarding the Bush administration’s warrantless wiretapping program, even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret security clearances, and the document would not be released publicly.

Here's the link to the post

So the point is that the Obama DOJ has advanced the theory that the courts do not have any right of judicial oversight on what is declared secret or what can be used as defense evidence.

This is not an issue of sovereign immunity; this is an issue of the Executive arguing that it the only branch of government authorized to make national security decisions without any checks or balances.

Holding such a position has nothing to do with the 7-weeks thing; it has to do with the general reluctance of any administration to give up power once it has been attained.

I won't answer your Bagram point right now; I have read the IRC report and hundreds of other documents. I'm preparing a fairly lengthy examination of that issue soon.

Anonymous said...


You're right regarding the al-Haramain case - Obama's DOJ is wrong to be doing what they are - the gov't's whole behavior was despicable from the get-go.

Nevertheless, it IS in court where, hopefully, they'll lose.


Steve Newton said...

Thank you, A1, for admitting I have a legitimate point on at least one case.

My fear is that the government may lose the case in court and then defy the judge--which is not unrealistic, since the whole administration case is based on the premise that the judge has no jurisdiction to make such an order.

My larger issue--and this is completely aside from any ideological bias--is that we often forget that all historical phenomena encompass both continuity and change. In many cases, dramatic change often dulls us to noticing the banal continuities that are actually more important in terms of our lives, long-term.

Back to ideology: I believe that we are in a cycle wherein whichever party occupies the White House seeks to expand the power of the Presidency as much as possible, and does so in ways consistent with its ideological goals. But neither party has the slightest bit of interest in restricting the power of the executive--hence the Obama DOJ goes to court (with many of the same attorneys) and uses Bushco arguments to keep the same powers for themselves.

I find the practice reprehensible no matter who is doing it.

Anonymous said...

Agreed, except for the part about "neither party has the slightest bit of interest in restricting the power of the executive." See impeachment of Clinton. You can't try to restrict executive power more than that.

.And I might add (paraphrasing you):

Dramatic change often dulls us to noticing the incremental changes that are actually more important in terms of our lives, long-term.