Tim Griffin, Barbara Comstock and Karl Rove (Tim Griffin for Congress, Comstock for Delegate, White House photo)

For a candidate making his first bid for office, Tim Griffin couldn’t be in better shape. One week after announcing his campaign against Rep. Vic Snyder (D-Ark.), the incumbent in Arkansas’s most Democratic-leaning district, Griffin had raised $130,000. A Public Policy Polling survey released last week found Griffin only one point behind Snyder, a statistical tie with a congressman who did not even draw a challenger last year.

Image by: Matt Mahurin

“When I go around the district here in Arkansas,” Griffin told TWI before attending a D.C. fundraiser last week, “what I hear about is jobs, private sector versus the government, the national debt, and this health care bill.”

Asked again if his experience working the Bush administration ever comes up with voters, Griffin was insistent. “No,” he said. “No, no, no.”

Griffin’s experience isn’t unique. Nearly a year after George W. Bush left office, some of the Republican strategists who built their reputations on his campaigns, or in his White House, have re-emerged as prominent pundits, legal thinkers and strategists, and some have made the move back into the electoral arena. So far, they’ve had considerable success in winning and in setting up credible operations for 2010. In Minnesota, Sara Taylor, Bush’s former director of the Office of Political Affairs, is advising Gov. Tim Pawlenty’s (R-Minn.) PAC. In Virginia, Republican lawyer Barbara Comstock — who worked for John Ashcroft’s Justice Department and who helped defend I. Lewis “Scooter” Libby — won a tight election for a seat in the House of Delegates. That was a victory that some Democrats see as a prelude to a run for Congress when Comstock’s mentor Rep. Frank Wolf (R-Va.) retires.

It’s a perplexing situation for Democrats. Bush’s presidency had staggered to an end. His approval rating did not rise above 50 percent for the last three years of his tenure; he did not hit the campaign trail for his party’s national ticket in 2008, and only addressed the Republican National Convention via a satellite feed. Democrats felled Republican after Republican in 2008 by putting their headshots next to Bush’s. In the year that’s followed, though, Democrats have watched former Vice President Dick Cheney (and his daughter Liz) resurface as a conversation-driving critic of their foreign policy. Bush Justice Department lawyers like John Yoo and Jay Bybee have thrived in their perches in academia and on the federal bench, respectively. In this year’s race for governor in New Jersey, Democratic incumbent Jon Corzine attacked his Republican opponent, Chris Christie, for having political conversations with Karl Rove while still serving as a U.S. attorney. Christie won the election anyway.

If there’s a way to turn service under Bush into a losing issue for Republican candidates, Democrats haven’t figured it out. Comstock’s upset victory in Virginia, in a race where both candidates spent nearly $1 million, came after months of attacks on her political service. Democrats went after the candidate’s ties with gimmicks like “Barbara Comstock’s lost resume” — experience like “initiated negative campaigning ’storyline’ against Al Gore,” references like Karl Rove and Dick Cheney. TV ads and direct mail portrayed Comstock alongside the likes of Cheney and former Attorney General John Ashcroft. And Comstock didn’t wilt under the pressure. She welcomed backing from Republican allies up to and including Rove, who appeared at a September fundraiser on her behalf.

“Elections are always about the future and responding to what people are doing in their everyday lives,” Comstock told TWI, while also saying that she did not want to dwell too much on the attacks against her. “When you don’t do that, well, you look at some of these past elections for Republicans when people didn’t feel we were responding on those economic issues and we lost. In Virginia, we dealt with those real kitchen table issues.”

Democrats viewed Comstock’s win as insult added to an already injurious election night, a defeat that could have been prevented if she hadn’t been allowed to re-make her image. “Comstock ran an effective race,” said Matt Mansell, executive director of the Virginia House Democratic caucus. “She started communicating early and got the best of both worlds by presenting herself as a solutions-oriented moderate candidate while still getting fund-raising help from Ted Olsen and Mitt Romney and Karl Rove.” The party’s mistake, said Mansell, was not “to define her earlier as a Bush political hack.”

Not surprisingly, Comstock’s success has given a little bit of cheer to other veterans of the Bush administration who have been tarred by the association. Hans van Spakovsky, who was pilloried by Democrats over his work as voting section counsel to the assistant attorney general of the Civil Rights Division, told TWI that his career options were limited by those attacks.

“They were so effectively able to ruin my professional reputation as a lawyer,” said Spakovsky, who now works at the conservative Heritage Foundation, “despite the fact that they were wrong on all of these issues. I couldn’t get confirmed to the FEC. When I was looking for jobs last year, it was very clear to me that at least one of the law firms I talked to in town blackballed me because I was in the Bush administration. It’s a real problem in Washington today that people on the left side of the aisle can’t seem to disagree with people without going after that.”

Tim Griffin’s re-entry into politics, said Spakovsky, was a source of new optimism. “I wish Tim Griffin the best of luck,” he said. “I’m happy to see people who are determined, like him, start to fight back.”

If local Democrats have their way, Griffin’s comeback won’t take him all the way to Congress. “If he’s the nominee against Vic Snyder,” said Mariah Hattah, executive director of Arkansas Democratic Party, “it would pit a proven public servant against a campaign operative who worked for Karl Rove, the master of the dark arts of campaigning.” Hattah getting into a striking degree of specificity for a campaign that is still taking shape, suggested that state Democrats would make voters aware of the “caging” scandal that dogged Griffin before he left the U.S. attorney’s office. “No one likes likes voter suppression,” she said.

David Wasserman, the House race editor of the Cook Political Report, said that Democrats’ chances at making Griffin toxic depend wholly on the political environment. “In any other year that line on the resume would be a huge vulnerability,” said Wasserman. ‘But when the environment is good, it’s like Democrats are wearing velcro, and the Republicans are wearing teflon.”

In the meantime, Griffin is keeping his head down, raising funds and leaving aside much talk of his resume in the Bush years.

“I’ve done a lot of things in my career,” Griffin told TWI. “I’ve been in the army for 13 years. I’m a major. I went to Iraq. I’ve been an army prosecutor, and I’ve done a lot of things. And whatever I’ve done, I’ve just tried to do a really good job. Look — that’s politics. I don’t expect anything different. I’d say that if you get an opportunity to serve your president and your country, you take it.”

Fiji’s UN Ambassador, Berenado Vunibobo. He hosted a book launch for Bolton and [co-author Brett] Shaefer at the end of October.

This raises eyebrows, shall we say, because Fiji has been under military rule since since December 2006, when Commodore Bainimarama toppled the government. Since then, Human Rights Watch reports that Bainimarama has consolidated his power and detained political opponents.  Fijian troops are even barred from participating in UN Peacekeeping missions.   And, just last week, the self-appointed Bainimarama expelled top diplomats from Australia and New Zealand who criticized his regime.

Remember this the next time someone — oh, John McCain, I’m looking to you — pretends that the Bush administration was ever genuinely interested in human rights. In fairness to Bolton, he never bought in to that flimsy pretext for flexing American military power.

Maher Arar is a Canadian citizen who was seized in 2002 while changing planes at John F. Kennedy airport in New York and sent to Syria, where he says he was interrogated under torture and kept in a tiny grave-like cell. He was released almost a year later without charge, and with an acknowledgment by the Syrian government that it had no evidence against him.

After conducting its own investigation, the Canadian government confirmed that Arar had done nothing wrong, apologized for its role in providing faulty information to U.S. authorities, and paid Arar about $10 million in compensation for his ordeal. The United States, on the other hand, has never officially acknowledged the error (although former National Security Adviser Condoleezza Rice once conceded in a congressional hearing that the case had been “mishandled”) and still refuses to allow Arar to enter the country.

Represented by the Center for Constitutional Rights, Arar sued former Attorney General John Ashcroft in January 2004, FBI Director Robert Meuller and other U.S. officials for sending him to Syria where they knew he was likely to be tortured. Today, the full Second Circuit Court of Appeals, which heard the case en banc in a dramatic 2-hour oral argument last December, ruled that Arar has no right to compensation from U.S. officials.

Although the opinion is long and complex, the essence of the court’s decision is that the lawsuit cannot be allowed to go forward because it would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, Arar can’t claim compensation from U.S. authorities since it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria.

The case does not bode well for other victims of the Bush administration’s “extraordinary rendition” and other abusive interrogation policies, since virtually all of those cases could similarly implicate national security concerns. The other major extraordinary rendition case, brought by five British victims of the policy against a Boeing subsidiary that assisted the CIA, is pending before the Ninth Circuit Court of Appeals. The Obama administration recently won a re-hearing in that case, which it seeks to dismiss on the grounds that the litigation itself would reveal “state secrets” and endanger national security.

The Second Circuit judges voted seven to four to dismiss Arar’s case today. In a strongly worded dissent, Judge Guido Calabresi wrote: “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Here is the court’s opinion, filed today:

An executive order published by George W. Bush in January 2008 delineated the board’s powers. As the board reviews intelligence operations, Bush empowered it to “immediately report” on activities that “may be unlawful or contrary to Executive Order or presidential directive.” But that directive gave its reporting power to the president — who may have been the one who ordered such activities, in letter or spirit, in the first place. So it’s not much of a safeguard against lawlessness.

But President Obama changed that. The new executive order updating the 2008 one inserts language instructing the board to:

forward to the Attorney General information concerning intelligence activities that involve possible violations of Federal criminal laws or otherwise implicate the authority of the Attorney General

That holds out the prospect of the board becoming a check on intelligence abuses, as the attorney general — in theory — is beholden to enforce U.S. laws, not presidential prerogatives. We’ll have to see how this reporting requirement works in practice. But perhaps the board won’t be a backwater entity anymore.

President Barack Obama (WDCpix)

In signing the Defense Authorization Act, which, among other things, amends the laws governing military commissions, President Obama confirmed Wednesday that he plans to keep the controversial military commissions alive. The effect is to deny at least some suspected terrorists — now called “unprivileged enemy belligerents” — the right to a trial in a civilian federal court. And though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive the Obama administration and leave an indelible stamp on its legacy.

Image by: Matt Mahurin

Even those who fiercely oppose trying suspected terrorists in military commissions acknowledge that the months of wrangling over the legislation in Congress led to significant improvements over the Bush-era military commissions approved in the Military Commissions Act of 2006. Still, there are many lingering concerns. The new commissions allow the admission of coerced evidence in certain narrow circumstances. They allow the government to try children as war criminals. And, the new law would allow trials by military commission for offenses that are not traditionally considered war crimes. Those provisions leave even the new-and-improved military commissions vulnerable to constitutional challenge, and their verdicts open to reversal on appeal. And that could undermine the entire purpose of creating military commissions, which is ordinarily to provide swift justice when ordinary courts are not available.

Many legal experts and human rights advocates say the improvements over the 2006 Military Commissions Act are significant.

Under the amendments, an “unprivileged enemy belligerent” — what the Bush administration used to call an “enemy combatant” — is entitled to competent, experienced defense counsel, particularly if the suspect might face the death penalty. The previous commissions did not provide for defense lawyers with significant experience handling capital cases.

The new commissions also require that most statements of the accused must have been “voluntary” to be admitted at trial. That’s in addition to the requirement that the statements were not solicited by torture, or by cruel, inhuman or degrading treatment, as defined by the Detainee Treatment Act. Of course, the Detainee Treatment Act was interpreted by the Bush administration’s lawyer very liberally, so even extreme sleep and food deprivation, stress positions, threatening dogs and confinement with an insect in a small box was deemed lawful under that standard. But adding that the statement must also be “voluntary” — a change pressed by the Obama administration at several Congressional hearings — raises the bar significantly higher.

On the other hand, there is an exception. Statements are admissible even if not “voluntary” if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”  It remains to be seen how narrowly a judge will construe that.

The admission of hearsay evidence has been narrowed as well. The new law requires whoever introduces the evidence to give the other side enough advance warning to see the evidence and prepare a response, and the judge, in weighing the evidence, must “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne…” Then, in addition, the judge has to find that the statement is relevant and probative of a fact of the case, that it’s impractical to get direct testimony from the witness, and that “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.” That essentially mirrors the hearsay exception for evidence provided in a civilian federal court.

As for the admission of classified evidence, the military commission has to follow the same procedures a civilian federal court would to determine how and if the evidence can be used, and to what extent and in what form the accused and his lawyer are entitled to see it.

But if the procedural safeguards are so similar to those in federal court, then why have the military commissions at all? The question is even more important because Congress, in passing this law, defined the court’s jurisdiction to include crimes that are not traditionally war crimes, such as conspiracy, and suspects who are not traditionally considered war criminals, such as those who provide “material support” for terrorism. Even Assistant Attorney General David Kris, testifying before Congress, testified that it’s not clear that those crimes — which are commonly charged against terror suspects in civilian federal courts — can constitutionally be brought before a military commission. Justice Stevens, in the case of Hamdan v. Rumsfeld, in an opinion joined by three other justices, specifically notes that “conspiracy” has not traditionally been considered a war crime. (The court did not ultimately rule on that basis, so it’s not clear how a majority would rule on it now.) Therefore, defense lawyers could argue that for Congress to make it a war crime after the suspect’s crime was committed would be an unconstitutional “ex post facto” law, says Shayana Kadidal, senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights.

For the administration to bring a terrorism case before a military commission and be sure to avoid this issue, then, it would have to avoid charging conspiracy and substantial support for terrorism. Those charges are made in almost all terrorism cases.

Which raises the question, why bring cases in military commissions at all?

Justice John Paul Stevens in Hamdan argued that the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are necessary.

As the ACLU’s Jameel Jaffer said in a statement released yesterday after the President signed the new law: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

Many other lawyers and advocates agree. A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases. In only one of those did the defendant even put on a defense. In that case, Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five and a half years in prison, with credit for the more than five years he’d already served. He was released to his home country of Yemen in January.

Part of the reason the military commissions have been so ineffective is because they were vulnerable to constitutional challenge. But legal experts say that even the new commissions would be vulnerable. As ACLU attorney Chris Anders put it, “they’ve narrowed the gap, but they still fall far short of the due process guarantees in Article III courts, which will still make them vulnerable to reversals.”

“This is a brand-new system, for the third time,” said Kadidal, referring to the two earlier incarnations of the military commissions during the Bush administration. The first commission system was invalidated by the U.S. Supreme Court, and the second was suspended by the Obama administration.

“This lesser degree of process is not justice,” said Virginia Sloan, president of the bipartisan Constitution Project, in a statement released yesterday. “Furthermore, these modest improvements cannot save the irretrievably tainted military commissions.”

The Obama administration surely knows that these cases are vulnerable to challenge, particularly since Congress included provisions in them that Justice Department lawyers admitted were legally questionable. And it’s not clear that it wants to bring important cases in the military commissions, and risk having convictions of major terrorists reversed on appeal.

What’s more, there’s no “sunset provision” in the legislation, so the military commissions can exist indefinitely. That’s also contrary to what the administration itself asked for. David Kris, testifying before the Senate Armed Services Committee, noted that traditionally, “military commissions have been associated with a particular conflict of relatively short duration.” Buy contrast, the current conflict “could continue for a much longer time.”

The result is that the military commissions could outlast the Obama presidency, raising another potentially sticky point that the Obama administration might prefer to avoid. “By not having a sunset provision,” said Kadidal, “this system will be a permanent part of President Obama’s legacy.”

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

But once you start paying warlords with dubious human rights records, it can be very difficult to cut off or phase out the payments, particularly when the political structure necessary to keep the Afghan governance enterprise that supports the U.S. presence in business is essentially held together with baling wire. And when the resources of the United States are tied up, for years, in another war a few thousand miles to the west, perhaps there aren’t better practical options than to keep making those payments. Who wants to risk an eruption, or a political collapse, when the eyes of the Bush administration are on the chaos in Iraq? And since the military and intelligence priority during that period is to hunt terrorists, but you don’t have a robust intelligence network in-country and the Pashtun population isn’t going to tip you off because you don’t do anything for it, wouldn’t it make more sense to keep renting your politically connected warlords?

When the Obama administration says that it inherited an absolute mess from its predecessor, perhaps this might be an element of what it means.

Take the nomination of Dawn Johnsen, Obama’s pick to the head the Office of Legal Counsel, which provides critical legal advice to the president. The OLC, of course, is the same office that got into all sorts of trouble under the Bush administration, and several of its former lawyers are the subject of a much-awaited report from the Justice Department’s Office of Professional Responsibility, which reportedly has concluded that the lawyers violated legal ethics in recommending President George W. Bush permit the abuse of detainees and other suspensions of constitutional rights in the so-called “war on terror.” That report, although reportedly drafted last year, is apparently still being reviewed by the very lawyers it apparently censures, and is likely being edited and potentially watered-down as a result.

But even as President Obama says he wants to look forward, not back, he’s not exactly pushing very hard to get a new director for that Office of Legal Counsel confirmed so she can lead his legal department on its forward march. The nomination of Johnsen, a highly-respected law professor who was second-in-command at OLC under President Clinton, was voted out of the Senate Judiciary Committee with full Democratic support in March. She has yet to get a full Senate vote — though back in May, Attorney General Eric Holder called her confirmation “probably my top priority.”

Republicans have made clear that they’ll fight the Johnsen nomination and slow the voting process down, even though it seems clear Democrats have enough votes to confirm her. GOP lawmakers have painted Johnsen as a radical for publicly challenging some of the advice given by the Office of Legal Counsel during the Bush years. And during her confirmation hearings, some Republicans seized on the fact that Johnsen was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of ten co-authors on a brief in which there was a footnote that some Republicans found objectionable.

With the health care debate ongoing and the president staking much of the success of his first term on its outcome, the Obama administration may not have much interest in pushing the Johnsen nomination just now, since Republicans will likely insist on cloture — and the 30 hours of debate that comes with it — which would detract from the president’s current mission.

As a result, according to the White House and Senate staffers, a vote on the Johnsen nomination isn’t even on the calendar yet.

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

When he took office, President Obama made clear that torture is illegal and that the United States would not abuse detainees in its custody. He immediately ordered the CIA as well as the rest of the U.S. government to adhere to the rules set out in the Army Field Manual, which forbid the torture, abuse or humiliation of prisoners.

But when it comes to those tortured during the Bush administration, the Obama administration refuses to say that Bush officials violated existing law. In fact, in litigation over the torture and abuse of detainees that in some cases may have resulted in their deaths, the Obama administration has surprisingly endorsed the same legal positions as its predecessor, insisting that there is no constitutional right to humane treatment by U.S. authorities outside the United States, and that victims of torture and abuse and their survivors have no right to compensation or even an acknowledgment of what occurred.

Illustration by: Matt Mahurin

Several cases making their way through the courts now are challenging that position. In each, the Obama administration is taking essentially the same legal positions as did the Bush Justice Department before it.

The case of Al-Zahrani v. Rumsfeld, brought on behalf of two former Guantanamo detainees found dead in their cells in June 2006, is among the most recent filed. It’s now being actively litigated in a Washington, D.C. federal court. Neither Yasser Al-Zahrani nor Salah Al-Salami was ever charged with a crime, but both were deemed “enemy combatants” by a Defense Department procedure that the Supreme Court later declared inadequate. They spent four years in U.S. custody at Guantanamo Bay without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case. On June 10, 2006, the men were found hanged in their cells on a rope made from bed sheets and T-shirts. The military declared both deaths suicides. Al-Zahrani was 17 years old when he was transferred to Guantanamo and 22 when he died. Al-Salami died at age 37.

In January, the men’s fathers sued Defense Department officials. Represented by the Center for Constitutional Rights and the Human Rights Law Clinic at Washington College of Law at American University, the fathers claim their sons were subjected to conditions and treatment that the International Red Cross has described as “tantamount to torture.” They also claim that Defense Department officials ignored obvious signs of their deteriorating mental health, their growing despair, and the high risk of suicide.

In letters found after their deaths, the two prisoners described being beaten, deprived of sleep for up to 30 days, held in freezing cold or excruciatingly hot temperatures, subjected to humiliating and degrading body searches, prevented from practicing their religion, forcibly shaved contrary to their religious beliefs, and denied necessary medication. Both men were also isolated from the outside world and their families, and even separated from other detainees. According to their lawyers, they “spent the majority of each day confined alone in a small cell with numbingly little activity or stimuli and deprived of basic personal care items.” Al-Zahrani, who was one of the first detainees to arrive at Camp X-Ray in Guantanamo Bay, was held for the first few months of his detention in a small wire cage.

To protest their detention and conditions, the two men, along with dozens of other detainees, went on a hunger strike for several months. The government responded not by improving the conditions, but by restraining the men in chairs, forcing tubes down their noses and throats, and pumping food into their stomachs, their lawyers claim.

Meanwhile, they argue, it was clear that the prisoners’ mental health was deteriorating. In August 2003, nearly two dozen prisoners tried to hang themselves in their cells. And according to the complaint filed in this case, a military official acknowledged that shortly before the deaths of Al-Zahrani and Al-Salami, there was a high risk of mass suicide in the prison.

The relatives filed their lawsuit against 24 military officials, including former Secretary of Defense Donald Rumsfeld and former Chairman of the Joint Chiefs of Staff, Gen. Richard Myers, seeking acknowledgment of wrongdoing and compensation for the two prisoners’ deaths. But in June, the Obama administration’s Justice Department moved to dismiss the case. The government’s lawyers argued, among other things, that the Military Commissions Act, passed by Congress in 2006, had stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad.

Although lawsuits were brought during the Bush administration similarly suing Bush military officials for abuse, wrongful imprisonment and torture, none of those cases involved detainees who the military had decided were “enemy combatants.” But a slew of cases were brought on behalf of so-called “enemy combatants” seeking review of the legality of their detention in federal court.

In one of those cases decided last year, the Supreme Court held that part of that provision of the Military Commissions Act was an unconstitutional suspension of the right of habeas corpus, which allows a prisoner to challenge his detention. But that case, Boumediene v. Bush, did not rule specifically on whether prisoners have the right to challenge the conditions of their detention or their treatment in prison. The decision pertained solely to the right to challenge the detention itself.

Now, for the first time, the lawyers representing the families of Al-Zahrani and Al-Salami are arguing that the part of the Military Commissions Act that deprived the courts of hearing challenges to the treatment of detainees and conditions of their confinement is unconstitutional as well, and that Congress lacked the authority to strip the federal courts of jurisdiction over constitutional claims.

“Article III [of the U.S. Constitution] demands some federal court review—whether original or appellate—over all federal question claims,” writes the Center for Constitutional Rights in its brief to the D.C. federal court filed last week. “Because MCA Section 7 purports to eliminate all such review, it is unconstitutional and void.”

As CCR lawyer Shayana Kadidal explained it in an e-mail: “the text of Article III of the Constitution (the article dealing with the judicial branch) expressly says ‘the judicial power shall extend to all cases’ involving questions of federal law.” The Military Commissions Act contradicts that, says Kadidal: “The MCA says no court anywhere can review even constitutional claims.”

The Obama administration is insisting, however, that Congress had the power to eliminate judicial review of these claims. It also argues that the Defense Department officials are immune from suit, because, as the Bush Justice Department argued in previous cases, it wasn’t clear at the time that detainees had a right not to be tortured by U.S. officials at Guantanamo. They therefore have “qualified immunity” from suit.

But the Justice Department goes further than that. Under President Obama, the government is arguing not only that it wasn’t clear what rights detainees were entitled to back in 2006, but that even today the prisoners have no right to such basic constitutional protections as due process of law or the right to be free from cruel and unusual punishment. The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees,” writes the Justice Department in its brief.

And, the government argues, the courts should not imply a right to sue under the Constitution, in part because that could lead to “embarrassment of our government abroad.”

Ultimately, the Obama administration is arguing, victims of torture at a U.S.-run detention center abroad have no right to redress from the federal government. Only the military can take action in such cases, by disciplining military officers for abuse of prisoners. Yet during the Bush administration, military officials were rarely held accountable for abuse, even when it resulted in the deaths of detainees, as Human Rights First documented in a 2005 report. Senior officials in particular were exempt from accountability, and as retired Rear Admiral John Hutson, dean of the Franklin Pierce Law Center, noted at the time, “the highest punishment for anyone handed down in the case of a torture-related death has been five months in jail.”

TWI has also documented that the Pentagon has repeatedly ignored claims from its own military counsel that Defense Department employees abused, tortured and committed war crimes against detainees, as in the case of Guantanamo prisoner Mohammed Jawad.

Pardiss Kebriaei, the lead attorney on the case for the Center for Constitutional Rights, insists that the government is misreading Supreme Court precedent when it comes to the rights of Guantanamo detainees. “The Supreme Court has ruled three times that Guantanamo is not beyond the reach of the law, yet the government is claiming, in 2009, that the base is still a legal black hole and what happens at Guantanamo stays at Guantánamo,” said Kebriaei.

Eric Lewis, who represents four British former detainees who sued the federal government for their wrongful imprisonment and torture while in custody, and whose case was dismissed under the Bush administration (they recently filed a petition for review by the Supreme Court,) thinks the parents of Al-Zahrani and Al-Salami have a strong argument that the part of the law that strips the courts of jurisdiction over their claims is unconstitutional.

“If there’s a constitutional right, you need to provide some forum,” he said. “You can’t deprive them of all forums.”

Although the government officials are also claiming immunity on the grounds that they didn’t know it was unconstitutional to torture prisoners, Lewis argues that in the Al-Zahrani case, unlike earlier ones, there’s a case to be made that by 2006, when the men died, the Supreme Court had already ruled in Rasul v. Bush that detainees have the constitutional right to challenge their detention at the Guantanamo Bay prison camp, where the U.S. has “plenary and exclusive jurisdiction” even if it doesn’t have “ultimate sovereignty.” In other words, the court had already ruled that Guantanamo detainees have some constitutional rights.

The government, for its part, argues that it still wasn’t clear what specific rights Guantanamo detainees were entitled to, even in June 2006. And that argument could prevail. As Richard Seamon, a professor at the Idaho School of Law who has written extensively about torture lawsuits notes in a recent article posted on JURIST, federal officials in such cases may be granted qualified immunity “because of the paucity of case law clearly establishing the unconstitutionality of the use of torture in the war on terrorism and high-level executive-branch actions seemingly endorsing the torture, such as the Department of Justice’s infamous ‘torture memo.’”

Then again, as Lewis put it: “I would argue that when you’re the secretary of defense, you don’t need special notice to know it’s wrong to torture people.”

According to the Justice Department’s latest briefs filed in the Al-Zahrani case, however, the Obama administration does not agree.

On Friday, I heard from Jonathan Freiman, a constitutional lawyer who represents Jose Padilla in a lawsuit against the government.

By promising to improve its policy for invoking the state secrets privilege, the Obama Justice Department last week announced, with much fanfare, that it will require the attorney general to sign off every time the Justice Department claims “state secrets” trump a victim’s charges. Well, as Freiman points out, that’s what the law has always required, at least in theory. And that hasn’t stopped the government from using the state secrets privilege in the past simply to cover up government wrongdoing.

“Ever since the Supreme Court first recognized it in U.S. v. Reynolds, the doctrine has required that any invocation of the privilege be supported with an affidavit from the head of the relevant government department,” wrote Freiman in an email. “If we expect the A.G. to be more likely than other high government officials to respect law – and less likely to invoke the state secrets privilege just to cover up government wrongdoing – then the new policy is a good thing.”

“But for most of the last decade there wasn’t much reason to put the A.G. on a pedestal above his cabinet peers,” Freiman wrote. Maybe things will change, he said, but “with the administration’s continuing opposition to real checks and balances, it’s possible that we’ll never really know whether they’ve changed.”

That is, of course, the problem with allowing the government to claim “state secrets” to dismiss a case without even letting the judge review the evidence to decide if it’s really a national security concern or not. After all, in the Reynolds case, when the government first claimed the privilege, insisting that release of information about a military plane crash would endanger national security, it turned out the Justice Department was just hiding the military’s own negligence — and denying the widows of the plane crash victims not only compensation, but any opportunity to find out what really happened.

Correction: I mistakenly identified Jonathan Freiman as representing Al Haramain Islamic Foundation in a previous version of this post. He represents Jose Padilla. Jonathan Eisenberg represents Al Haramain. This post has been updated to reflect the correction.

Why, Frances Fragos Townsend, the former Bush White House counterterrorism adviser who chairs the commission. The Washington Post:

“The American people should be provided with as much detail — consistent with national security — that is focused on specific locations and sectors at specific risk,” she said. They should also be confident that “alert states, if elevated, will be lowered back to normal” within 15 days, absent credible intelligence of a continuing threat, she said.

Specifically, the task force said the country should redefine the current threat level — yellow — to serve as a lower baseline, called “guarded.” Orange would be redesignated as “elevated risk,” and red would remain “high alert,” for an imminent or ongoing attack.

Why isn’t there a keyboard shortcut for “facepalm,” already? According to Townsend, we should walk around in a constant level of “guarded” awareness of being blown up in a terrorist attack. You there, the farmer in Sheboygin. al-Qaeda is coming for your grain silo. It’s a thin line between vigilance and hysteria, and this proposal is a number of hopscotch jumps across it. And how in the world would viewing my life as a constant state of yellow alert possibly make me more vigilant against terrorism? It’s almost like turning this proposal over to a senior member of one of the most disastrous administrations in American history is a poorly thought out idea.

–

You can follow TWI on Twitter and Facebook.