Bits & Pieces

Andrew Sullivan makes an eloquent argument in favor of civil trials of terrorists. Read the whole thing, but here is an excerpt:

When you listen to the Fox News right speak about this, they reveal amazing levels of fear. They have been truly spooked by these men with long beards and chilling eyes. They are so scared of them they are willing to drop any and all legal principles that the West has historically used with respect to mass murderers. Their fear brought them to institute torture, and to engage in mass brutality against prisoners of war in every theater of combat in a manner that will tragically taint the honor of the US military for a very long time. It led them to establish Gitmo, to create for the world a reverse symbol of the Statue of Liberty, and imprint it on the minds and in the consciences of an entire generation of human beings, whose view of America will never be the same.

It made speedy prosecution of any of those who allegedly plotted and planned 9/11 impossible – and will make actual prosecution of any of them extremely hard. It turns out, then, that the primary (if not the only) thing we had to fear – was fear itself. It was our fear that gave al Qaeda so many propaganda victories.

And it is the refusal to be afraid that reflects the decision to bring this fanatic mass murderer back to the scene of the crime, to remind the world, all these years later, of why he is on trial, to restore a patriotic pride in the system we have, a system which it is al Qaeda’s goal to destroy.

I believe this is the best symbolic answer to 9/11: a trial, with due process, after tempers have calmed somewhat, that exposes this evil for all it truly was. And also reveals the tragedy of an American government that lost its nerve and has now, under a new president, regained it.

For those concerned about the likelihood of success in the upcoming 9/11 prosecutions in New York, you should understand that the DOJ believes it can be successful.  For example, the United States Department of Justice, in a June, 2006, report, outlined its overwhelming success in prosecuting terrorism suspects in the United States courts. I would encourage reading at least the Executive Summary section of the report, which includes this:

Our international terrorism and terrorism-related cases draw on the full range of criminal charges available in the federal criminal code, according to the facts and circumstances of each case. The material support statutes have been a cornerstone of our success in terrorism financing cases as well as in a wide range of other cases addressing all types of support to terrorism. Our effective use of these statutes has allowed us to intervene at the early stages of terrorist planning, before a terrorist act occurs. We also have effectively used other terrorism and weapons of mass destruction statutes, and have drawn on more general statutes, such as immigration fraud and false statement offenses, where they apply in terrorism investigations. These statutes of more general application have been so important to our disruption efforts that U.S. Attorneys’ Offices around the country have undertaken numerous initiatives to expand their use of these statutes to further our prevention strategy.

Our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution. This is one of a number of classic criminal enforcement approaches discussed below. Cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own, and we discuss some of these cases in which such cooperation has been critical to success.

As for those concerned about the defendants making a spectacle out of the trial, and using it as a platform, I would ask why you believe that the statements from such individuals are more powerful than a presentation of the evidence against them in open court? Is our country (or our system of criminal justice) so fragile that it cannot stand strongly against the words of killers?

Further, compare the results obtained in terrorism cases in the courts versus the record of military convictions as of November 2008.

Although some have defended the commissions as an efficient form of military justice, their track record in prosecuting terrorism cases has been abysmal. Since their establishment, the commissions have concluded only three cases, two after trials and one based on a guilty plea. During the same time period, the federal courts have tried more than 107 terrorism cases, obtaining 145 convictions. Several defendants have been sentenced to life in prison.

Hold the trial of alleged 9/11 plotters in civil court, using American standards for criminal justice, and in New York, a scene of the attack, is an opportunity to show the world that our criminal justice system can handle the hardest cases, and at the same time provide defendants with fairness and openness. The complexity will be high, but the return to respect for the rule of law makes the effort worthwhile.

From an editorial in today’s New York Times:

Republican lawmakers and the self-promoting independent senator from Connecticut, Joseph Lieberman, pounced on the chance to appear on television. Despite all evidence to the contrary, they said military tribunals are a more secure and appropriate venue for trying terrorism suspects. Senator John Cornyn of Texas, a former judge who should have more regard for the law, offered the absurd claim that Mr. Obama was treating the 9/11 conspirators as “common criminals.”

There is nothing common about them — or Mr. Holder’s decision. Putting the five defendants on public trial a few blocks from the site of the former World Trade Center is entirely fitting. Experience shows that federal courts are capable of handling high-profile terrorism trials without comprising legitimate secrets, national security or the rule of law. Mr. Bush’s tribunals failed to hold a single trial.

Chalk this one up to a real surprise. Alberto “Whatever the President Wants” Gonzales comes out in favor of Attorney General Eric Holder’s decision to investigate a limited number of torture accusations.  Sort of.

We worked very hard to establish ground rules and parameters about how to deal with terrorists. And if people go beyond that, I think it is legitimate to question and examine that conduct to ensure people are held accountable for their actions, even if it’s action in prosecuting the war on terror.

This may be good news. According to the Los Angeles Times, Attorney General Eric Holder appears increasingly likely to approve a criminal investigation of torture allegations.

But the description of the investigation in the article appears troublesome to me. Basically, the article states that the investigation would be limited to investigation of personnel who conducted harsh interrogations beyond those authorized by Bush administration DOJ memos, drafted primarily by John Yoo. While helping to discover the truth about what happened in the interrogation centers is worthwhile and necessary to avoid future wrong-doing, focusing the investigation on the front line personnel is insufficient.

The real question that should be fully explored is why and how the top level Bush administration authorized and condoned activities violative of our treaty obligations and the long-standing moral code of the United States. This is exactly what happened in the Abu Ghraib investigation, where low-level personnel were scape-goated as “bad apples” while higher command level personnel that brought harsher interrogation than that shown in the photos into the entire system.  The problem was fundamentally not with the front line, but with command and control.

Finally. According to the Washington Post, Eric Holder is seriously considering appointing a special prosecutor to investigation whether US personnel tortured terrorism suspects in the aftermath of the September 11 attacks. The leak of his consideration is likely a trial ballon to test the political waters. Hopefully, the Obama administration will stand tough on this issue, and Eric Holder will proceed to do the right thing.

Attorney General Eric H. Holder Jr. is leaning toward appointing a criminal prosecutor to investigate whether CIA personnel tortured terrorism suspects after Sept. 11, 2001, setting the stage for a conflict with administration officials who would prefer the issues remain in the past, according to three sources familiar with his thinking.

Naming a prosecutor to probe alleged abuses during the darkest period in the Bush era would run counter to President Obama’s oft-repeated desire to be “looking forward and not backwards.” Top political aides have expressed concern that such an investigation might spawn partisan debates that could overtake Obama’s ambitious legislative agenda.

The White House successfully resisted efforts by congressional Democrats to establish a “truth and reconciliation” panel. But fresh disclosures have continued to emerge about detainee mistreatment, including a secret CIA watchdog report, recently reviewed by Holder, highlighting several episodes that could be likened to torture.

Update: Here is an excellent view on the matter from Tim F. at Ballon Juice:

To put it bluntly, this strategy is a goddamn disgrace. We called it whitewashing when the Bush administration made a few grunts pay for the orders they followed at Abu Ghraib. We called it a disgrace because that’s what it was. What do you think we should call it now? I don’t feel much sympathy for the sadistic creeps who will pay for their superiors’ sins this time any more than than I feel for Chuck Graner and Lynndie Englund. Interrogators who took it on themselves to surpass even the sick boundaries of Yoo’s torture memos deserve to answer in court. Nonetheless, to stop there and call it justice makes me physically ill.

Update 2: Much more from Glenn Greenwald at Salon.

Holder’s likely decision makes no more sense from a purely utilitarian perspective. The kind of investigations that are worth a major prosecutor’s time start at the grunt level so they can build a case against bigger fish. Handling it like this looks almost exactly the same as asking a mafia prosecutor to focus exclusively on the goons who got a little too enthusiastic when they beat up card players behind on their debts. Ordinary citizens would have a hard time seeing that as a terribly serious effort to bring down organized crime.

One of the messes transferred to the Obama administration from George Bush’s DOJ is the misbehavior of federal prosecutors in the Siegelman case in Alabama. Scott Horton reports for Harpers:

U.W. Clemon, formerly Alabama’s most senior federal judge, has written a scorching letter to Attorney General Eric Holder itemizing gross misconduct by federal prosecutors involved in the Siegelman case and demanding that the Justice Department open a full investigation into the matter. “The 2004 prosecution of Mr. Siegelman in the Northern District of Alabama was the most unfounded criminal case over which I presided in my entire judicial career,” he writes. “In my judgment, his prosecution was completely without legal merit; and it could not have been accomplished without the approval of the Department of Justice.” Clemon goes on to note that prosecutors engaged in judicial forum shopping, attempted to poison the jury pool, and filed and pressed bogus charges.

… and they are available here. They should be required reading. More to come on this as I am still reading them.  But from what I have read so far, I think Andrew Sullivan summarizes it very effectively:

Perhaps you are reading these documents alongside me. I’ve only read the Bybee memo, as chilling an artefact as you are ever likely to read in a democratic society, the work clearly not of a lawyer assessing torture techniques in good faith, but of an administration official tasked with finding how torture techniques already decided upon can be parsed in exquisitely disingenuous ways to fit the law, even when they clearly do not. This is what Hannah Arendt wrote of when she talked of the banality of evil. To read a bureaucrat finding ways to describe and parse away the clear infliction of torture on a terror suspect well outside any “ticking time bomb” scenario is to realize what so many of us feared and sensed from the shards of information we have been piecing together for years. It is all true. These memos form a coda to the Red Cross report, confirming its evidentiary conclusions, while finding exquisite, legalistic and preposterous ways to deny the obvious.

Newsweek is reporting that there is a major battle going on between Attorney General Eric Holder and CIA representatives over the possible release of the Bush-era memos written in the Justice Department that apparently gave legal cover to illegal methods of torture. Legal decisions should be public, especially when related to major issues involving the treatment of humans. A nation of secret laws is not a nation of laws at all.

As reported by NEWSWEEK, the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. “Holy hell has broken loose over this,” said the official, who asked not to be identified because of political sensitivities.

Brennan is a former senior CIA official who was once considered by Obama for agency director but withdrew his name late last year after public criticism that he was too close to past officials involved in Bush administration decisions. Brennan, who now oversees intelligence issues at the National Security Council, argued that release of the memos could embarrass foreign intelligence services who cooperated with the CIA, either by participating in overseas “extraordinary renditions” of high-level detainees or housing them in overseas “black site” prisons.

This according to NPR, among other sources.

In a move first reported by NPR, U.S. Attorney General Eric Holder said he has decided to drop the case against Stevens rather than continue to defend the conviction in the face of persistent problems stemming from the actions of prosecutors.

“After careful review, I have concluded that certain information should have been provided to the defense for use at trial,” Holder said in a statement Wednesday. “In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.”

Good news from the Obama administration on medical marijuana. Unlike the Bush administration, it now appears clear that the Feds will no longer raid facilities for dispensing medical marijuana in states where it is legal.

U.S. Attorney General Eric Holder is sending strong signals that President Obama – who as a candidate said states should be allowed to make their own rules on medical marijuana – will end raids on pot dispensaries in California.

Asked at a Washington news conference Wednesday about Drug Enforcement Administration raids in California since Obama took office last month, Holder said the administration has changed its policy.

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing here in law enforcement,” he said. “What he said during the campaign is now American policy.”

Bill Piper, national affairs director of the Drug Policy Alliance, a marijuana advocacy group, said the statement is encouraging.

“I think it definitely signals that Obama is moving in a new direction, that it means what he said on the campaign trail that marijuana should be treated as a health issue rather than a criminal justice issue,” he said.

This is a dramatic change from Gonzales and Mukasey’s refusal to answer a direct question. In his nomination testimony, Eric Holder says flatly that waterboarding is torture. This is a major step in the rehabilitation of the country’s world-wide image and a step toward fundamental decency.

Attorney General-nominee Eric Holder Jr. forcefully broke from the Bush administration’s counterterrorism policies Thursday, declaring that waterboarding is torture and pledging to prosecute some Guantanamo Bay detainees in U.S. courts.

It was the latest signal that President-elect Barack Obama will chart a new course in combatting terrorism. As recently as last week, Vice President Dick Cheney defended waterboarding, a harsh interrogation tactic that simulates drowning, saying it provided valuable intelligence.

The DOJ Inspector General has released its report analyzing actions taken in the Civil Rights Division under Bush by Bradley Schlozman.  It is isn’t pretty. It concludes that ideological (political) decisions on hiring attorneys incivil service, non-political positions was rampant.

The evidence in our investigation showed that Schlozman, first as a Deputy Assistant Attorney General and subsequently as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General, considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division. In doing so, he violated federal law – the Civil Service Reform Act – and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct. The evidence also showed that Division managers failed to exercise sufficient oversight to ensure that Schlozman did not engage in inappropriate hiring and personnel practices. Moreover, Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee and in his written responses to supplemental questions from the Committee.

Schlozman is no longer employed by the Department and, therefore, is not subject to disciplinary action by the Department. We recommend, however, that, if criminal prosecution is declined these findings be considered if Schlozman seeks federal employment in the future. We believe that his violations of the merit system principles set forth in the Civil Service Reform Act, federal regulations, and Department policy, and his subsequent false statements to Congress render him unsuitable for federal service.

The DOJ declined to prosecute Schlozman, according to the report.

Update: Eric Holder, if confirmed, says he will review the decision not to prosecute Schlozman.