Max Boot writes in his blurb for the book that it’s “not the work of some wild-eyed zealot,” but the book is clearly another of Yoo’s attempts to defend his more extreme legal theories, including those that have been roundly criticized by prominent Republicans who served in the Bush administration. Many of those theories — such as the executive’s right to authorize torture and to detain terror suspects indefinitely — are responsible for some of the worst conundrums that President Obama finds himself in today.

Whether cast as Hamiltonian or Machiavellian, Yoo’s point is that “great” presidents have always interpreted their powers broadly in times of crisis, and pesky critics at the time always denounced them for breaking the law. To illustrate this, Yoo rolls out the usual examples — Abraham Lincoln suspending habeas corpus during the Civil War, and Franklin Delano Roosevelt interning the Japanese during World War II.

Although careful not to call George W. Bush a “great” or even “above-average” president, Yoo argues that Bush’s decisions to suspend habeas corpus, use “coercive interrogation methods” (Yoo never uses the word torture) and indefinitely detain without charge “al Qaeda terrorists” (actually, terror suspects) were all simply par for the course — the actions any decent president would take under the circumstances. In Yoo’s view, this is not presidential lawbreaking, even if the president’s actions do violate existing laws. Rather, Yoo argues, the Constitution accommodates such lawbreaking — what Yoo calls “the need to respond to extraordinary events through the President’s executive power” — which apparently is limitless.

This is how, at the Office of Legal Counsel, Yoo managed to advise the president that he could ignore the legal bans on torture and even the Bill of Rights on U.S. soil. It’s too soon to know if that was wrong, Yoo says, since we’re still confronting the terrorist threat. “Only when we have the benefit of distance will we know whether Bush’s aggressive use of executive authority was too much, too little, or just right,” he writes, so complaints about torture and warrantless wiretapping are little more than Monday-morning quarterbacking.

It’s worth remembering that Yoo, now a law professor at University of California – Berkeley, is the subject of a still-unreleased ethics investigation as well as a pending lawsuit, both of which address charges that he not only misconstrued the law but was actively involved in breaking it. His aggressive defense of limitless executive authority sounds even shadier when read in that light.

But Yoo is at his most disingenuous when he criticizes President Obama. In his afterword, Yoo writes that under Obama’s executive orders, the CIA now must conduct interrogations according to the rules of the Army Field Manual — which “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite.”

In fact, the Army Field Manual allows for prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners, as the Center for Constitutional Rights and others have noted. These can be used in combination, and can cause, as former Bush appointees and a congressional investigation have found, long-lasting psychological and physical harm.

Nonetheless, doing away with “the Bush system” means “we will get little timely information from captured al Qaeda terrorists,” Yoo asserts, especially if Obama allows them trials in federal court.

Yoo’s book was released too soon for his own good. Within just the last two weeks we’ve learned that an al-Qaeda terror suspect who tries to blow up a plane can be captured, arrested, charged in federal court and promptly provide information about others planning similar attacks on U.S. targets.

If Yoo’s views weren’t already thoroughly discredited, that last section of his book does the job — which just goes to show that Professor Yoo really should have stayed in academia. Yoo may have good stories to tell about the theories of executive power at work under Madison, Truman and Roosevelt, but when he applies theory to practice he fails miserably. Unfortunately, that’s not just a problem for his publisher. The entire nation is suffering for it now.

The new directive, from Peter Orszag at the Office of Management and Budget, requires executive departments and agencies, within specific deadlines of not more than two months, to publish more information about their work online in an open format that can be retrieved and searched easily.

The progress report recounts what the administration has done so far to improve transparency, including writing new ethics rules to (mostly) prevent lobbyists from coming to work in government or sitting on its advisory boards; publishing the names of White House visitors; creating Websites that track how the government spends taxpayer money; reversing a Bush administration executive order that limited access to presidential records; and adopted a new state secrets policy. (The report neglects to mention ongoing criticism about the effectiveness of some of these measures.)

The latest transparency directive, while welcomed by open-government advocates, also highlights the fact that the sort of opennness Obama called for on his first day in office still has not taken place inside many executive agencies.

As Meredith Fuchs, General Counsel of the National Security Archive put it in a statement released after the White House announcement:

The Administration appears to realize that even eloquent statements of principle will not shift the bureaucracy’s natural and political tendency towards secrecy.

As for OMB’s new timetables to require more openness, she said:

The only thing missing is a clear enforcement regime, but if the White House, OMB, and the heads of the agencies are serious, then they will use their authority to make these changes real. In some ways that is the test of how serious the Obama Administration is about transparency.

Update: Steven Aftergood at Secrecy News notes that the new directive “does not extend to classified national security information or controlled unclassified information, both of which are to be addressed in other pending executive orders. But it does direct agencies to reduce any backlogs in Freedom of Information Act requests “by ten percent each year.”

The first and better-known case involves whether the executive branch has the right to refuse to release photos of detainees abused by U.S. officials in overseas prisons simply because it fears the photos could spark violence against U.S. troops. Lawyers for detainees, such as American Civil Liberties Union attorney Amrit Singh, have insisted that the photographs “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib,” and therefore their disclosure is “critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

Meanwhile, Republicans and others have argued that the photographs’ release “will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country’s image, and endanger our men and women in uniform,” as Sens. Lindsey Graham (R-S.C.) and Joseph Lieberman (I-Conn.) wrote to President Obama in May. Days later, Obama announced that he had changed his mind and decided not to release the photos, although he’d previously agreed to turn them over. Whether potential “harm” to the troops by unspecified persons abroad is sufficient to trump the public interest in access to information embodied in the Freedom of Information Act is the question the Supreme Court will consider, if it decides tomorrow to review the case.

The second big terror-related case questions whether a court can order the U.S. government to release Guantanamo detainees into the United States if the court has already determined that the government has no right to keep holding them and the government has not found anywhere else for them to go. The situation arises in the case of the Chinese Muslim Uighurs, all of whom have all been cleared for release. Although four were released to Bermuda earlier this year, 13 remain imprisoned at Guantanamo Bay because they cannot return to China, where they would likely face persecution. The United States has refused to accept them. The D.C. Circuit Court earlier this year ruled that the courts cannot order them released into the United States; only the president and the Department of Homeland Security have that power.

Perhaps in an effort to keep the issue away from the Supreme Court, the administration last week announced that the Pacific Island nation of Palau had agreed to take most of the remaining Uighur prisoners that have yet to be released. But it did not agree to take one of the 13 prisoners left, who is reportedly mentally ill. He and his brother, then, will remain at Guantanamo. If Palau had taken all of them, their case — and the Supreme Court’s chance to review the president’s authority — would have become moot.

What’s remarkable about both cases is that the Obama administration has taken essentially the same position as did the Bush administration before it. Tomorrow the high court will decide whether it will review and potentially reverse those positions, as it has in several other key rulings that dealt a blow to the Bush administration’s counterterrorism policies regarding executive power and the treatment of war-on-terror detainees.

The men being considered are reportedly two Chinese Muslim Uighurs, an Uzbek and a Palestinian. The men the United States has been trying to relocate have all been deemed not to pose any security threat but cannot be returned to their native countries for fear of persecution and torture there.

Ireland, Portugal, France, Albania, the Pacific island nation of Palau and Bermuda have all already agreed to take about a dozen detainees since President Obama took office in January and promised to close the Guantanamo prison by January 2010.

The United States, however, has refused to accept any of the detainees cleared for release on its own soil, including those that U.S. federal judges have ruled were wrongly imprisoned by the United States for more than seven years.

In a related case, the Supreme Court has been sitting on a petition for review filed by lawyers representing Chinese Muslim Uighurs, in which the D.C. Circuit held that federal judges have no power to order any prisoners released into the United States. In both cases, the prisoners fear torture if returned to their home countries, or oppose being transferred beyond the reach of federal law that allows them to challenge their detentions

Lawyers for the detainees are already moving to seek Supreme Court review to prevent their clients’ involuntary transfer. At the same time, lawyers for an Algerian prisoner, Ahmed Belbacha, asked the Circuit Court to hold off his transfer to Algeria, where he fears he’ll be tortured, until the petition to the Supreme Court is filed. Human rights groups have urged the Obama administration to allow such prisoners to be released into the United States instead of sending them to countries where they’re likely to face torture.

]]> http://washingtonindependent.com/58183/federal-court-clears-way-for-forced-transfer-of-gitmo-prisoners/feed 2 http://washingtonindependent.com/54383/controversy-grows-over-obama-signing-statements http://washingtonindependent.com/54383/controversy-grows-over-obama-signing-statements#comments Mon, 10 Aug 2009 13:01:20 +0000 Daphne Eviatar http://washingtonindependent.com/?p=54383 Despite President Obama’s previous criticism of former President George W. Bush’s “signing statements” that limit the president’s responsibility to comply with a bill passed by Congress, it turns out Obama has been doing much the same thing since he took office.  Charlie Savage reported in The New York More...

After telling the government last week that it has “no evidence” supporting its case against Mohammed Jawad — the Afghan teenager arrested for allegedly throwing a hand grenade at U.S. soldiers, tortured, then transferred to Guantanamo Bay where he was abused some more — the government announced that it was dropping its military case against him; now it plans to bring new, previously unmentioned criminal charges.

Yesterday, Jawad’s lawyers insisted in a court filing that the government has no right to keep holding him and Huvelle should grant Jawad’s habeas petition. Huvelle then ordered the government file its justification today, and show up for a hearing in her court tomorrow.

“It’s another version of the same view of the last administration, that courts don’t have the power to remedy illegal detention,” said ACLU lawyer Jonathan Hafetz, who represents Jawad, in a phone conversation this morning. “They’re saying you can win the battle but lose the war.”

As William Glaberson notes in The New York Times today, the case is “emerging as a major test of whether the courts or the president has the final authority over when prisoners there are released.”

Although the D.C. Circuit Court has ruled that federal courts don’t have the authority to release a foreign detainee into the United States, in this case, the government of Afghanistan wants Jawad returned there to face potential charges. The judge’s authority to have him sent back there is unclear.

Hafetz said that, given that the government has conceded it no longer has the authority to hold Jawad under the Authorization for Use of Military Force — which was its basis for holding him for the last seven years — Huvelle should grant his habeas petition and order him sent home. “His detention is illegal,” said Hafetz. “And the issue is whether a judge can do anything about it. If not, habeas is a dead-letter.”

The Justice Department did not respond to a request for comment or explanation of how they can continue to keep Jawad in prison without proving its claims in his habeas corpus case. Although the government claims it has “new evidence” that Jawad threw a hand grenade at American troops, it has never presented that new evidence to Huvelle to justify his detention. As I’ve explained before, the burden of proof in a habeas corpus case, which is a civil case, is significantly less than what’s needed to prove a criminal case. So it’s odd that the government wouldn’t present the evidence at a hearing in the case where it has a lower burden of proof. That at least suggests that the government is just trying to get the case away from Huvelle, who’s repeatedly expressed her skepticism of the government’s evidence.

Indeed, if anyone seems willing to test the executive’s claim for absolute authority over the matter, it’s Huvelle, whose growing impatience with the Justice Department’s handling of this case is evident.

Last week, in addition to calling the government’s case “riddled with holes,” she said about the Justice Department: “The right hand doesn’t know what the left hand is doing.”