BY TRUDY RUBIN

TRUBIN@PHILLYNEWS.COM

(C)2009 The Philadelphia Inquirer

The Miami Herald -link to original article

How could anyone release the only man convicted in the bombing of Pan Am Flight 103? Does anyone really believe that Scottish officials sent Abdelbaset Ali Mohmed al-Megrahi back to Libya for “compassionate” reasons? Yes, the former Libyan intelligence agent is purportedly dying of cancer. But as a London Times columnist asked: Would the same Scots release Robert Black, the Scottish serial killer of young girls, if he were on death’s door?

Clearly something is going on here that has little to do with compassion. Americans, who remember the Lockerbie tragedy with horror, deserve to know the real reason Megrahi was freed.

The most likely possibility falls under the heading “business and blackmail.” The Brits have extensive trade interests in Libya, and Megrahi had become an obstacle to them. (No one believes British Prime Minister Gordon Brown’s claim that the decision rested solely with Scottish officials.)

As Saif Gadhafi, a son of Libya’s leader, put it last week, “In all commercial contracts for oil and gas with Britain, Megrahi was always on the negotiating table.” His father, the mercurial Moammar, went out of his way to embarrass Brown, along with Queen Elizabeth and her son Prince Andrew (a regular visitor to Libya on trade missions), by thanking them publicly for their alleged role in Megrahi’s release.

The British had been seeking to unload Megrahi for some time since Gadhafi’s renunciation of terrorism and his scrapping of Libya’s weapons of mass destruction in 2003. Gadhafi made clear that lucrative oil deals depended on Megrahi’s repatriation.

Moreover, Gadhafi has been using his oil and gas wealth to blackmail Europeans into accepting his unorthodox behavior. Over the past year, the Libyan leader waged economic war against the Swiss after his son Hannibal, a reputed playboy, was briefly arrested by police in a Geneva hotel based on complaints that he had been beating his servants.

In response, Gadhafi cut off crucial oil supplies to Switzerland and made two Swiss citizens living in Tripoli virtual hostages. After the Swiss president made a groveling apology, Libya promised to restore normal relations and to let the hostages go.

British expats were threatened with similar reprisals if Megrahi died in prison, according to The London Times. So home he went.

There is a second, but less likely, possible explanation for the Megrahi decision. Some argue the Brits knew that Megrahi wasn’t guilty, and Iran was the true culprit. So why not release him? (Never mind that a neutral Scottish court found him guilty.)

To lay that one to rest, I spoke by phone with Vincent Cannistraro, a former head of counterterrorism at the CIA who directed the agency’s Pan Am 103 investigation. Cannistraro told me the evidence at first implicated a Damascus-based Palestinian group, the Popular Front for the Liberation of Palestine — General Command (PFLP-GC), which was working on behalf of Iran. Tehran had authorized and funded the bombing, he said, as a reprisal for the accidental U.S. shoot-down of an Iranian civilian airliner over the Persian Gulf in July 1988.

But this operation was foiled in October 1988 by German intelligence, which broke up a PFLP-GC cell in Frankfurt. The Lockerbie bombing happened two months later.

Cannistraro believes the PFLP-GC handed off the operation to the Libyans. The explosive device that destroyed Pan Am 103 was placed in a Toshiba cassette player — just like the bombs found in the Frankfurt bust.

“The methodology of the boom box was very coincidental,” Cannistraro said. “To me, this meant that Libya picked up the technology from the PFLP-GC, which had active members in Tripoli.” He added firmly: “There is no question in my mind that the Libyans carried this operation off.”

Among the other questions is what role, if any, the Obama administration had in it. After all, 180 of 270 passengers on Pan Am 103 were Americans. The British press claims Attorney General Eric Holder was informed in advance.

Once Megrahi was released, it was dumb for the Brits or the Americans to expect Gadhafi to refrain from giving him a big public reception.

Obama’s engagement policy can’t preclude serious consequences for Libya for continuing to glorify Megrahi. “The man who organized the hero’s welcome for Megrahi was the one who ordered the Lockerbie bombing — Moammar Gadhafi,” says Cannistraro. “He stuck his finger in our eye.”

The Miami Herald - link to original article

August 29, 2009

BY CAROL ROSENBERG
CROSENBERG@MIAMIHERALD.COM

The U.S. government on Friday sent two Syrian men from the prison camps at Guantánamo to resettlement in Portugal after years as war on terror captives at the U.S. Navy base in southeast Cuba.

The Justice Department in Washington announced the transfer late Friday in tandem with the Portuguese government in Lisbon, which said it granted the two men “humanitarian asylum” at the “specific request” of the U.S. government.

“These citizens, who expressed interest in being hosted by Portugal, are not subject to any charges,” Portugal’s Interior Ministry said in a statement.

It described the Syrians as “free individuals now living in homes provided by the state, which is taking steps to integrate them into Portuguese society.”

Portugal’s Interior Ministry also said that the two men were given visas that allowed them to live in Portugal but required further applications to travel elsewhere in the European Union.

Neither announcement named the men.

A U.S. Justice Department spokesman, Dean Boyd, said the two former captives’ names were not being made public, by request of Portugal, “for security and privacy reasons.”

The U.S. announcement said the release arrangements for both men were arranged under a review established by the Obama administration to downsize the detainee population ahead of the president’s mandate to close the controversial prison camps in Cuba, by Jan. 22, 2010.

“The United States has coordinated with the government of Portugal to ensure the transfers take place under appropriate security measures and will continue to consult with the government of Portugal regarding these detainees,” it added.

The transfer followed by less than one week the repatriation of a young Afghan captive, Mohammed Jawad, whose release was ordered by a judge.

It lowered the unofficial Guantánamo prison camp census to about 226 foreign men.

Portugal said in its statement that the government had long expressed “its willingness to help President Barack Obama and the American administration find solutions to accommodate people who have been detained at Guantánamo.”

TELEVISION REVIEWS

Our greatest president remembered, warts and all - Link to original article

BY GLENN GARVIN 

ggarvin@MiamiHerald.com

The Miami Herald - Feb 8, 2009 

• American Experience: The Assassination of Abraham Lincoln, 9-10:30 p.m. Monday, WPBT-PBS 2 

• Looking for Lincoln, 9-11 p.m. Wednesday, WPBTPBS 2 

• Stealing Lincoln’s Body, 9-11 p.m. Feb. 16, History Channel corpus and tries civilians in military courts. He blocks newspapers from publishing anything he considers damaging to national security — defined rather loosely — and spies on citizens’ telecommunications. 

    You probably didn’t real-See if any of this sounds familiar: A president plunges the country into a war he expects to end within weeks, but four years later, it’s still bloodily dragging on. He suspends the writ of habeas ize George W. Bush and Abraham Lincoln had that much in common, did you? To be fair, there are important differences between the two. When The New York Times and Wall Street Journal were about to run stories on U.S. spying in the war on terrorism, Bush merely tried to talk them out of it. Lincoln actually shut down hundreds of newspapers. 

    And while Bush ordered military trials for only a couple of dozen detainees, most of them foreigners captured on or near combat zones, Lincoln jailed thousands of American citizens. Most were arrested far from any battlefield, sometimes for such ‘‘offenses’’ as saying, ‘‘I wouldn’t wipe my [butt] with the Stars and Stripes.’’ 

    Another important difference: While Bush limped from office last month with the lowest popularity ratings of any American president, Lincoln is a mythical figure who’s regularly named the greatest president in history in polls of historians. 

    The creation of the Lincoln myth is at the heart of three engrossing documentaries airing over the next two weeks, timed to coincide with the 200th anniversary of his birth on Feb. 12. Looking for Lincoln probes how presidents as different in politics and temperament as Franklin Roosevelt, Ronald Reagan, Bill Clinton and George W. Bush can all claim inspiration from Lincoln. 

The Assassination of Abraham Lincoln examines how the president’s murder transformed his reputation. And 

Stealing Lincoln’s Body 

explores some of the weirder manifestations of the Lincoln obsession. 

‘LOOKING FOR LINCOLN’ 

    The most ambitious and captivating of the three is Looking for Lincoln, written and hosted by Henry Louis Gates. The Harvard literary scholar, who is black, grew up idolizing Lincoln as the Great Emancipator, only to suffer jolting disillusion when he learned the president was a racist who didn’t believe in social or political equality for blacks. 

    ‘‘He seemed to draw a distinction between freedom on the one hand and equality on the other,’’ says Gates, noting that during Lincoln’s famous debates with Stephen Douglas, he opposed letting blacks vote, serve on juries or marry whites. Even Lincoln’s Emancipation Proclamation was less an act of racial liberation than a military tactic aimed at disrupting the South’s economy; it only applied to slaves in the Confederacy, not the border states allied with the North. 

    As disconcerting as Lincoln’s real racial beliefs may be to anyone raised on the Emancipator myth, they are not terribly hard to reconcile. Lincoln was not only a man of his time, steeped in its deep racism, but also a politician keenly aware of the dangers of tacking too far from the mainstream. Even so, Lincoln’s beliefs were evolving; by the time of the assassination, he even supported limited black suffrage. 

    More puzzling to Gates is Lincoln’s cavalier disregard for the U.S. Constitution and civil liberties. The military draft he ordered (America’s first), the kangaroo courts and ruthless suppression of dissent, were so deeply unpopular at the time that Lincoln himself expected to lose his 1864 bid for reelection. (He was saved only by the Union army’s ruthless drive through Georgia, which convinced voters that the war was nearly over.) 

    ‘‘In Lincoln’s case, much of the most heated criticism that dogged him during the Civil War has been forgotten,’’ says Gates. ‘‘Today he basks in history’s glow, a moral giant.’’ 

    Lincoln, Gates concludes, comforted himself with the idea that he would be properly judged not by voters but by history itself, which wouldn’t consider the way he pushed the levers of power, only the results. That’s a view that has understandably appealed to other American presidents in troubled times, including the most recently departed occupant of the White House. 

    ‘‘I am a president who has been accused of excessively using presidential power,’’ Bush tells Gates. ‘‘I would defend my decisions and continually defend them, and so it’s hard for me to be critical of any of the decisions Lincoln made. . . . I do think that history will end up judging any president in the whole, as opposed to a particular decision.’’ If that sounds like saying the ends justify the means, is it really any different than the historians who anoint Lincoln as a great president for keeping the Union together, regardless of how he did it? 

‘THE ASSASSINATION 

OF ABRAHAM LINCOLN’ 

    If Gates was surprised at how quickly the public doubts about Lincoln were forgotten, John Wilkes Booth, the gunman whose story is recounted in The Assassination of Abraham Lincoln, was downright astonished. 

    An actor who imagined himself larger than life since boyhood, Booth expected to finally fulfill his heroic destiny by killing a president whom many Americans regarded as a tyrant. Hiding out in the days after the assassination, he was appalled to see that newspapers were portraying him not as a liberator but as a cowardly traitor. 

    Ironically, by martyring Lincoln, Booth probably did more to cleanse his reputation than a thousand modern spinmasters could have accomplished. ‘‘It was with the assassination that the myth of Abraham Lincoln was born,’’ notes one historian in Assassination. ‘‘Lincoln was not uniformly liked or beloved during his presidency. Millions of people hated him. Once he was assassinated, everything changed.’’ 

‘STEALING 

LINCOLN’S BODY’ 

    Just how strongly and strangely beloved he became is the subject of Stealing Lincoln’s Body, which recounts the obsessive spasm of national grief that followed his death. The man whose reelection seemed in doubt just five months earlier was now proclaimed such a genius that his brain was removed and weighed to see if it was significantly heavier than other men’s. It wasn’t. That’s one lesson about Lincoln future presidents might want to remember.

May 1, 2009

By Jonah Goldberg

National Review OnLine

In his press conference Wednesday night, President Obama offered a nice little sermonette on “shortcuts.”

Asked about his decision to release the “torture memos” and ban waterboarding, Obama said: “I was struck by an article that I was reading the other day talking about the fact that the British during World War II, when London was being bombed to smithereens, had 200 or so detainees. And Churchill said, ‘We don’t torture,’ when . . . all of the British people were being subjected to unimaginable risk and threat. . . . Churchill understood, you start taking shortcuts, over time, that corrodes what’s best in a people. It corrodes the character of a country.”

It’s a nice, honorable statement. But there’s not much evidence it’s true.

It’s unconfirmed, but the article Obama referred to is probably a combination of a 2006 op-ed by Ben Macintyre in the Times of London and a recent blog post about it by The Atlantic’s Andrew Sullivan. Macintyre focused on British Col. Robin “Tin Eye” Stephens, the wartime commander of Camp 020 whose motto was “never strike a man,” a code he didn’t always succeed in enforcing. But even many of Stephens’s preferred techniques - sleep deprivation, psychological cruelty, etc. - are routinely denounced as “torture” by Bush administration critics like Sullivan.

Macintyre doesn’t mention Churchill. That’s all Sullivan, who writes: “Churchill nonetheless knew that embracing torture was the equivalent of surrender to the barbarism he was fighting.”

Typically, Sullivan’s emotions are getting ahead of his facts. Churchill’s preference for humane treatment of German POWs under the Geneva Conventions had more to do with ensuring reciprocity from enemy armies. Al-Qaeda isn’t a signatory and isn’t interested in such reciprocity.

One reason Churchill might have eschewed putting the screws to detainees in 1942 is that he already knew what they could tell him about the bombings. The Allies knew where the airbases were and had cracked German codes years before.

Regardless, Churchill and Great Britain didn’t quite take the firm stand against “torture” that Obama and Sullivan suggest. During the war, the Brits ran an interrogation center, “the Cage,” in one of London’s fanciest neighborhoods, where they worked over 3,573 captured Germans, sometimes brutally. The Free French movement, headquartered in London, savagely beat detainees under the nose of British authorities. From 1945 to 1947, Colonel Stephens himself ran the Bad Nenndorf prison near Hanover, Germany, where Soviet and Nazi prisoners were treated far more brutally than those at Guantanamo Bay. Stephens was court-martialed, and cleared, for some of the alleged atrocities.

Of course, none of this remotely made Britain “equivalent” to Nazi Germany.

Regardless of the debatable facts, the real problem is this idea that “taking shortcuts” erodes the character of a people. One hears this constantly, but it is almost invariably asserted rather than demonstrated.

First, this argument assumes society knows about the shortcuts. After all, if the shortcut in question is kept a secret, then it’s hard to see how the “character of a people” will be corroded (or that such methods will be used as a “recruiting tool”). Alas, the idea that the government should be able to do things in secret to fight a war is out of vogue today.

The more significant shortcuts are the public ones people can’t ignore. Churchill ordered the firebombing of Dresden just twelve weeks before the end of World War II. No one knows for sure how many civilians were burned alive, but tens of thousands surely were, in no small part to deliver a psychological blow to the Germans. If Churchill could have waterboarded a prisoner to avoid that - or stop the Holocaust - would one shortcut have been preferable to the other? Why? Or why not? Obama gives no sense he has an answer to such questions. You can ask the same questions about the shortcuts that flattened Hiroshima and Nagasaki.

Did these shortcuts erode the character of the American and British people? If so, how? And what does it say about the “greatest generation” Barack Obama invokes relentlessly? And, again, what of the shortcuts we don’t know about?

Churchill was a heroic leader. He did right as best he could in a bloody mess of a war. But he made countless horrible-but-correct decisions in the process. For instance, he refused to warn residents of Coventry that the Nazis were going to bomb, lest he betray the secret that he was listening to Nazi cable traffic. After the war, he advocated the shortcut of summary executions of Nazi officials.

It might seem otherwise, but I’m not making the case for what some people see as torture. I’m simply noting that war is always about shortcuts - all are horrible; some are necessary. If Obama doesn’t understand that, let’s hope he never has to learn it.

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Feb 21, 2009

Wall Street Journal - link

One of the darker periods of modern American history was J. Edgar Hoover’s long reign over the FBI, as we have learned since he died in 1972. So it is more than a historical footnote to discover new records showing that prominent public television broadcaster Bill Moyers participated in Hoover’s exploits.

Under the Freedom of Information Act, the Washington Post has obtained a few of the former FBI director’s secret files. According to a Thursday front-page story, Hoover was “consumed” with exposing a (nonexistent) relationship between a gay photographer and Jack Valenti, the late film industry lobbyist who was then an aide to Lyndon Johnson. Hoover’s M.O. was to amass incriminating personal information as political blackmail.

But as the Post reports in passing, the dossier also reveals that Mr. Moyers — then a special assistant to LBJ — requested in 1964 that Hoover’s G-men “investigate two other administration figures who were ’suspected as having homosexual tendencies.’”

This isn’t the first time Mr. Moyers’s name has come up in connection with Hoover’s abuse of office. When Laurence Silberman, now a federal appeals judge, was acting Attorney General in 1975, he was obliged to read Hoover’s secret files in their entirety in preparation for testimony before Congress — and as far as we know remains one of the only living officials to have done so. “It was the single worst experience of my long governmental service,” he wrote in these pages in 2005.

Amid “bits of dirt on figures such as Martin Luther King,” Judge Silberman found a 1964 memo from Mr. Moyers directing Hoover’s agents to investigate Barry Goldwater’s campaign staff for evidence of homosexual activity. A few weeks before, an LBJ aide named Walter Jenkins had been arrested in a men’s bathroom, and Mr. Silberman wrote that Mr. Moyers and his boss evidently wanted leverage in the event Goldwater tried to use the liaison against them. (He didn’t, as it happened.)

When that episode became public after Mr. Silberman testified, an irate Mr. Moyers called him and, with typical delicacy, accused him of falling for forged CIA memos. Mr. Silberman offered to study the matter and, should Mr. Moyers’s allegations pan out, he would publicly exonerate him. “There was a pause on the line and then he said, ‘I was very young. How will I explain this to my children?’ And then he rang off.”

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Memories are short in Washington, and Mr. Moyers has gone on to promote himself as a political moralist, routinely sermonizing about what he claims are abuses of power by his ideological enemies. Since 9/11, he has been particularly intense in criticizing President Bush for his antiterror policies, such as warrantless wiretapping against al Qaeda.

Yet the historical record suggests that when Mr. Moyers was in a position of actual power, he was complicit in FBI dirt-digging against U.S. citizens solely for political purposes. As Judge Silberman put it in 2005, “I have always thought that the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”

Mr. Moyers told us through a spokeswoman that he “never heard of the Valenti matter until this story and had nothing to add to it.” He also pointed to a 1975 Newsweek article in which he wrote that he learned of the LBJ-Hoover relationship in “the quickly fading days of my innocence.” In the Nixon days, this was called a nondenial denial.

By LARA JAKES, Associated Press Writer  –  link

Thu Feb 5, 2009

WASHINGTON – Three senior Pentagon officials tapped by the Bush administration to oversee detainee policy at Guantanamo Bay remain on the job despite President Barack Obama’s order to reverse course at the Navy prison in Cuba.

The Bush appointees’ ongoing influence over one of Obama’s first and most sensitive national security decisions raises questions by critics — within and outside the Pentagon — about whether those who championed the controversial Guantanamo military court system can now be depended upon to help shut it down.

Until Thursday, the senior judge in charge of terrorist trials at Guantanamo had stalled in enforcing Obama’s demand to halt all court proceedings for the estimated 245 terror suspects held there. The judge, Susan J. Crawford, is a Bush political appointee.

Two other officials, working in the Pentagon’s detainee policy office, have been shunted into civil service jobs. As a result, they cannot be summarily fired because of the change in presidential administrations.

In a letter released Thursday, Sen. Dianne Feinstein demanded that Defense Secretary Robert Gates review whether Bush holdovers in the policy office had improperly kept their jobs.

“I ask that you immediately review the circumstances behind the conversion of these positions and the hiring of any former Bush administration appointees as career or temporary appointments in that office,” Feinstein, D-Calif., wrote in the letter dated Feb. 4. “This is especially disconcerting within the Office of Detainee Affairs due to the nature of the policy recommendations that office provides regarding Guantanamo.”

The Pentagon has reviewed the cases of all three appointees, whom President George W. Bush’s White House vetted and approved for political posts in 2007. A spokesman said defense officials concluded that none “burrowed” into the system — or improperly transferred from political to career jobs.

White House spokesman Tommy Vietor declined comment Thursday. He was not initially aware of the Bush administration’s three Guantanamo policy holdovers when asked about them earlier this week.

Gates, the only Cabinet-level holdover from the Bush administration, told Congress last week he would look into whether political appointees have burrowed into theU.S. military work force. None of the three Guantanamo policy officials is on a list of about 150 political appointees cleared to keep working for Gates.

After a week of uncertainty over whether she would obey the order, Crawford on Thursday overturned a lower-ranking military judge’s ruling and froze the trial of suspected USS Cole bomber Abd al-Rahim al-Nashiri from going forward.

Her delay in issuing a decision in the case forced dozens of Defense Department officials, along with relatives of the Cole victims, on standby Thursday for a weekend flight in time for al-Nashiri’s Monday arraignment in Guantanamo.

Crawford declined to comment about the delay in the ruling or about her status as the a Bush appointee. She is a former Pentagon inspector general who worked forDick Cheney when he was defense secretary during President George H.W. Bush’s administration. She also was recently in the news when she said interrogation methods used on one suspect at Guantanamo amounted to torture. The Bush administration had maintained it did not torture.

Asked how long Crawford would remain on the job, Pentagon spokesman Cmdr. J.D. Gordon said, “Until we’re told otherwise.”

The two other Bush appointees are now in civil service Pentagon jobs.

One of them, Deputy Assistant Secretary of Defense Sandy Hodgkinson, was already a career employee at the State Department when she took the job that is usually a political post, said Pentagon spokesman Lt. Col. Les’ A. Melnyk. She was allowed to keep her career employee status, Melnyk said.

Hodgkinson oversees the Pentagon’s detainee affairs policy. She is expected to remain in that office, if not in the political job, according to a military official who was not authorized to discuss the matter publicly and spoke on condition of anonymity.

“To be clear, Ms. Hodgkinson is not and has not been a political appointee,” Melnyk said.

Gordon said Hodgkinson was not immediately available for comment.

Also staying in the Pentagon’s policy office is Tara Jones, a special assistant. Jones’ last day as a political appointee was Jan. 16, but she recently returned as a temporary civil service employee though Sept. 30, Melnyk said. Those jobs can be used to transition into permanent government careers.

Earlier this week, Jones escorted three GOP senators during a visit to the Guantanamo detention center. All three — Sens. James Inhofe of Oklahoma, Richard Burr of North Carolina and David Vitter of Louisiana — oppose Obama’s plans to shut down the prison. However, Melnyk said, Jones is specifically tasked to work on Iraq and Afghanistan reconstruction issues in her new job.

Before joining the policy office, Jones worked several years on a Pentagon public affairs program aimed at persuading military analysts to generate favorable news coverage on the war in Iraq, conditions at Guantanamo and other efforts to combat terrorism.

The program has since been shut down amid fierce Capitol Hill criticism and investigations into whether it violated Pentagon ethics and Federal Communications Commission policy.

Jones declined to be interviewed.

Andrew J. Puglia Levy 01.26.09, 12:00 AM ET

Forbes.com - link

“I’d like to close Guantanamo. … [W]e are a nation of laws. Eventually, these people will have trials and they will have counsel and they will be represented in a court of law.” So said not President Obama, but then-President Bush back in 2006. Obama may soon learn that those goals, set out in his recent executive order, are easier said than done. But the new president’s plans depart from our previous policy in one significant respect: He has opened the possibility that some of the detainees held at Guantanamo Bay will be brought to the United States.

That’s a scenario President Bush was never willing to allow. From when Guantanamo swelled with over 700 detainees from the battlefields of Afghanistan and elsewhere, the Bush administration repatriated hundreds to their home countries or willing third countries. Not every situation was perfect: Some of the transfers occurred with no consequence. Others resulted in detainees returning to the fight and taking up arms against American soldiers and their allies (The New York Times reported this weekend, for example, that one freed Saudi detainee has emerged as the No. 2 in al-Qaida’s Yemeni branch).

Those policies, however, were always preferable to bringing detainees here. Under current law, once a detainee sets foot in the United States, it’s possible that he eventually could be walking the streets. Obama’s executive order commits to closing Guantanamo in one year and, in addition to calling for the continuation of efforts to repatriate detainees, directs administration consideration of the possibility of bringing some detainees to the United States. Because most of those detainees who could safely be sent to other countries were dispersed long ago, the new administration will be hard pressed to find appropriate countries to take the roughly 245 who remain. That means a ticket to Kansas, or perhaps, as Representative Jack Murtha suggested, Pennsylvania.

Many of the detainee cases suffer from a lack of admissible evidence or other problems relating to the realities of battlefield capture, a point President Obama himself has acknowledged. Transferring such cases to the United States would quickly raise familiar questions of indefinite detention on U.S. soil. In a few best-case scenarios, there may be sufficient unclassified evidence to bring a case in U.S. court or other tribunal. Doing so may present an admirable exercise of democracy in action, accountability and the rule of law. But judges and juries can be unpredictable–and while we may be willing to bear the price of questionable acquittals in our criminal system for the sake of our judicial ideal, the balance of interests is necessarily different in releasing someone who poses a threat to national security.

That’s not as far-fetched as you think. The possibility of releases by well-meaning juries is abetted by years of congressional and media allegations of false intelligence, torture and the general lawlessness of the Bush administration. A similar problem could attend one who is convicted but sentenced to a term that the administration deems too short to significantly reduce the detainee’s dangerousness. This was the case recently with Salim Ahmed Hamdan, Osama Bin Ladin’s driver, who was sentenced by a military commission jury to 66 months and given credit for the 61 months he had already spent at Guantanamo Bay.

Hamdan was returned to his home country of Yemen before his sentence concluded. But it may not be as easy to remove someone who has touched U.S. soil.

For example, although the detainees at Guantanamo almost certainly qualify for removal under the Immigration and Nationality Act, some detainees may hail from countries to which they cannot be returned on account of humanitarian concerns, and current Supreme Court precedent may limit how long the government can detain such individuals pending their removal. Given the lack of cooperation America has received from the international community in relocating detainees from Guantanamo, it is difficult to see it being any easier to persuade countries to take detainees once they’ve landed in the United States.

In addition to the administration’s potential plans to bring over Guantanamo residents, Obama will also face pre-existing court orders to do so. In October, in Kiyemba v. Bush, a federal district court in Washington, D.C., granted the habeas corpus petitions of 17 Chinese Uighurs who have been held at Guantanamo and ordered them released into the United States. The Bush administration had refused to transfer the Uighurs back to their home country of China out of fear that they would be tortured, and prior diplomatic efforts to find a third country willing to accept them had been unsuccessful.

The Bush Administration argued that the Uighurs received arms training at a military camp in Afghanistan to engage in organized insurrection against the Government of China and were picked up in the fighting that followed 9/11. The district court based its conclusion in part on an earlier decision that the government failed to establish that one of the 17 Uighurs, Huzaifa Parhat, met the legal definition of an “enemy combatant.”

The Bush administration appealed the district court’s order to bring the Uighurs to the United States and a split panel of the D.C. Circuit granted the administration’s request for a stay. But the D.C. Circuit could rule on the merits of the case any day now and, when it does, the Obama administration will be faced with some real choices. If the court affirms the lower court and orders the Uighurs into the United States, will the Obama Justice Department decline to appeal to the Supreme Court? If the court reverses the lower court and concludes–as the Bush administration argued–that a court lacks the authority to order the Uighurs into the United States against the wishes of the executive branch, will the new administration moot the case by voluntarily doing so?

If the Obama administration chooses either path, it will be overlooking the possibility that the Uighurs, like any other detainees who may not meet the narrow legal definition of an “enemy combatant,” can nonetheless pose a serious security threat to the American people and, if they do, should not be allowed in. Enemy combatancy, as a legal concept, hinges largely on the government’s ability to prove that a detainee was affiliated with a group linked to al-Qaida or the Taliban–and whether a detainee engaged in hostilities against the United States or its allies. A distinct and separate legal question, however, is whether such aliens are admissible to the country under immigration law on account of terrorist-related activities or because they are otherwise a serious danger to society.

Non-U.S. citizens who have engaged in terrorist-related activities are regularly excluded from our country–whether their desired target was the United States or another country. In the case of the Uighurs, the best that can be said of them is that they were training for jihad against China, not the United States. Even if this is true, individuals who are prepared to take such extremist measures–and who sought the training to do so–do not belong in America. This, of course, does not take account of the new-found resentment the Uighurs could have for their captors of several years.

This approach is consistent with our willingness to transfer some of these same dangerous detainees to other countries. It is logical to have a higher standard for who we let into the United States than we have for those who we can accept sending overseas.

It is clear from his executive order that President Obama understands the legal challenges to closing Guantanamo, to say nothing of the political challenges (to date, no congressman besides Representative Murtha has volunteered his district to house the Uighurs or any other of the Guantanamo detainees that President Obama might transfer to the United States). His willingness to work with Congress to address these challenges is the best approach available.

Unfortunately, as we saw most recently in Boumediene v. Bush, where the Supreme Court struck down as unconstitutional the habeas corpus-limiting provisions of the Military Commissions Act, courts will not always adhere to the lines drawn by the executive and legislative branches in this area. Obama would be wise be to continue the current policy goal of closing Guantanamo as quickly as possible, but without arbitrary time lines that could endanger national security.

Andrew J. Puglia Levy was deputy general counsel of the Department of Homeland Security in the Bush administration.

January 24, 2009

By David Rittgers

REALCLEARPOLITICS - LINK

President Obama wasted no time in halting detainee trials before military commissions in Guantanamo. Good. He will soon be confronted with a range of ideas for dealing with the detainees there–including prosecuting them in special “national security courts” that will supposedly offer justice while keeping classified evidence out of the public view.

Obama needs to recognize that establishing such courts is a recipe for both bad law and bad policy. Along with numerous compelling legal arguments, any court outside of existing civilian or military systems only serves to exaggerate the power of extremist terrorists and validate their delusions of grandeur.

Proponents of national security courts often point to the Foreign Intelligence Surveillance Court (FISC), which reviews requests for surveillance warrants against suspected foreign intelligence agents. The FISC uses judges with high-level security clearances that, as some proponents argue, could be used as the backbone for a new court system to try the detainees. The trials would be largely closed to the public and would not use a jury.

Using closed courts to try suspected terrorists plays the propaganda game in exactly the way our enemies want, and cheapens American justice on the world stage. Terrorism and insurgency constitute violence with a message. To effectively counter terrorists, we must provide a message of our own that denies a propaganda victory to their cause. Meting sound and irreproachable justice is an important way to do that.

While American forces are constantly improving their counterterrorism and counterinsurgency methods, we remain ineffective in countering enemy propaganda in the field of “lawfare.” Lawfare is the use of international law to attack nation-states in courts of law and public opinion. The Taliban do this every time they hide behind civilians and then denounce Coalition forces for the inevitable and regrettable casualties. Guantanamo represents a self-inflicted lawfare wound against the United States, where the limbo between domestic criminal law and the law of war erodes at America’s values and international standing.

While serving as a Special Forces officer in Afghanistan, I took into account the Taliban’s propaganda purposes when planning operations. They didn’t need to kill us to win a small victory. They needed to shoot at us and run away to tell the tale, where fishing stories of exaggerated casualties could encourage ever larger groups of radicalized fighters to attack the Afghans and their American allies.

Khalid Sheikh Mohammed had lawfare in mind when he and several co-defendants tried to plead guilty to the Military Commissions and ask for the death penalty. This constituted one final martyrdom mission where he could complain to the world about his treatment before a kangaroo court. We must not give him his final moment of glory.

Instead, transfer Khalid Sheikh Mohammed into an existing court along with the other detainees we have enough evidence to try. Courts-martial are the envy of the world’s military justice systems. Better yet, use the federal court system; nothing destroys Al Qaeda’s message better than a jury trial. A co-equal branch of government, represented by a life-tenured judge not beholden to the president, using a jury of average American citizens, weighing the evidence and coming to a guilty verdict–that is effective counter-lawfare.

Federal courts are fully able to handle such cases. They have successfully prosecuted over a hundred terrorism cases since 9/11, attaining over a 90 percent conviction rate. Using the Classified Information Procedures Act (CIPA), federal courts can exclude classified information or offer it in a redacted or unclassified version to protect government interests. Federal courts have proven flexible and successful with CIPA, special detention rules, jury security measures, and exceptions to domestic law that mean we won’t have to read Miranda rights to future detainees.

The Founders wrote the Bill of Rights after a violent insurgency brought on by government oppression, and the principles contained therein are no weaker while countering today’s terrorists. Using national security courts to try the detainees in Guantanamo opens the door to closed and classified trials of domestic terror suspects. This degradation of essential liberties is unwise and avoids the social function of trials: to show the world–not just a judge in his chambers–that the defendant is guilty and deserves our condemnation.

In the current war of images, Al Qaeda struck a terrible blow with airplanes smacking into the sides of skyscrapers. Since that awful moment, America has a mixed record in the battle of opposing pictures and video clips, with Abu Ghraib and Guantanamo effectively offsetting the purple fingers of voters in new democracies. Let the next image–Khalid Sheikh Mohammed marching off to life imprisonment with a federal marshal at his side–follow an open trial with declassified versions of the necessary evidence, not a hearing behind closed doors.

Seattle Times news services - link 

By SCOTT SHANE, MARK MAZZETTI and HELENE COOPER

The New York Times - link

WASHINGTON — President Obama reversed the most disputed counterterrorism policies of the Bush administration Thursday, saying “our ideals give us the strength and moral high ground” in the fight against al-Qaida. But he postponed for months decisions on complex questions the United States has been dealing with since the terrorist attacks of 2001.

He signed executive orders closing the Guantánamo Bay, Cuba, detention camp within a year, ending the CIA’s secret prisons and requiring all interrogations to follow the noncoercive methods of the Army Field Manual. “We intend to win this fight,” he said. “We are going to win it on our own terms.”

His actions on the second full day of his presidency won praise from human-rights groups and Democrats in Congress, who said the new policies would help restore the United States’ moral authority.

Obama’s orders represented an important first step toward rewriting U.S. rules for dealing with terrorism suspects. But only his decision to halt, for now, the military trials at Guantánamo seemed likely to have immediate practical significance, with other critical policy choices to be resolved by task forces set up within the administration.

Among the questions the White House did not resolve Thursday: What should be done with terrorists who cannot be tried in U.S. courts, either because evidence against them was obtained by torture or because intelligence is too sensitive to use in court? Should some interrogation methods remain secret to keep al-Qaida from training to resist them? How can the United States make sure prisoners transferred to other countries will not be tortured?

Members of Obama’s national-security team have expressed a wide range of views on the details of interrogation and detention policy, and there is likely to be robust internal debate before the questions are resolved.

John Hutson, a retired admiral and law-school dean who attended the signing ceremony, said he has confidence the administration will come up with practical answers to such questions.

Closing Guantánamo and banning coercive interrogation, Hutson said, “is the right thing to do morally, diplomatically, militarily and constitutionally. But it also makes us safer.” But Rep. Peter Hoekstra of Michigan, the top Republican on the House Intelligence Committee, said the decision to close Guantánamo by a year from now “places hope ahead of reality; it sets an objective without a plan to get there.”

In offering a warning sounded by other Republicans, Hoekstra noted that in briefings for Congress, administration officials “could not answer questions as to what they will do with any new jihadists or enemy combatants that we capture.”

Obama’s order closing Guantánamo assigns the attorney general to lead a review of what should happen to the remaining 245 detainees and does not rule out the possibility of trying some of them using military commissions, as the Bush administration had begun to do, though possibly with different procedures.

In a separate directive, Obama asked for a high-level review of the case of Ali al-Marri, — Obama called him “clearly a dangerous individual” — who is being held without charges as an “enemy combatant” in a military jail in South Carolina.

The Justice Department asked the Supreme Court for a 30-day stay in al-Marri’s civil case challenging his detention until the new administration decides on its position.

By MARK MAZZETTI and SCOTT SHANE

The New York Times - link

Published: January 23, 2009

WASHINGTON — Is Khalid Sheikh Mohammed coming to a prison near you?

One day after President Obama ordered that the military detention center at Guantánamo Bay, Cuba, be shuttered, lawmakers in Washington wrestled with the implications of bringing dozens of the 245 remaining inmates onto American soil.

Republican lawmakers, who oppose Mr. Obama’s plan, found a talking point with political appeal. They said closing Guantánamo could allow dangerous terrorists to get off on legal technicalities and be released into quiet neighborhoods across the United States. If the detainees were convicted, the Republicans continued, American prisons housing terrorism suspects could become magnets for attacks.

Meanwhile, none of the Democrats who on Thursday hailed the closing of the detention camp were stepping forward to offer prisons in their districts or states to receive the prisoners.

Senator Christopher S. Bond, Republican of Missouri and vice chairman of the Senate Intelligence Committee, taunted the chairwoman, Dianne Feinstein, Democrat of California, by suggesting that the authorities reopen Alcatraz Prison in the San Francisco Bay.

On Friday, a spokesman for Mrs. Feinstein countered that Alcatraz now was a “national park and tourist attraction, not a functioning prison,” and that the senator “does not consider it a suitable place to house detainees.”

But Mrs. Feinstein does believe that some Guantánamo prisoners could be moved to maximum-security civilian or military prisons in the United States, the spokesman said, not naming any specific ones.

Senator Carl Levin, Democrat of Michigan and the chairman of the Senate Armed Services Committee, said in response to a question on Friday that Guantánamo detainees who were moved to the United States “should be held at maximum-security federal facilities wherever they are available.” Like other Democrats queried Friday, Mr. Levin did not specifically address the question of prisoners moving to his state.

One of the first Democrats in Congress to address the not-in-my-backyard issue directly was Representative John P. Murtha of Pennsylvania, who told reporters this week that terrorism suspects would be no more dangerous in a secure Pennsylvania prison than they were in Cuba.

“There are thousands of dangerous prisoners being held securely behind bars in supermax prisons across the United States,” Mr. Murtha said Friday. He noted, however, that there was no supermax facility in his district.

The number of detainees who may face federal trials — by various estimates, 50 to 100 of the remaining Guantánamo inmates — is tiny by the standards of the federal prison system, which currently holds 201,375 people in 114 facilities, according to Felicia Ponce, a spokeswoman for the Federal Bureau of Prisons. Those include 9 detention centers that hold defendants awaiting trial, 21 high-security penitentiaries and a supersecure prison in Florence, Colo., where several convicted terrorists are already locked up.

Obama administration officials are beginning to review the files on the remaining detainees at Guantánamo to decide where they should go. Some have been judged not dangerous and cleared for release, but officials have not found a country to take them. Others, including Mr. Mohammed, the chief planner of the Sept. 11 terrorist attacks, will almost certainly face trial, either in a federal or a military court.

But incoming administration officials admit that every option is imperfect. “There aren’t pretty choices for what we have to do with them,” Dennis C. Blair, the nominee for director of national intelligence, told senators on Thursday.

Republican lawmakers have watched these struggles with a certain relish.

Representative Peter Hoekstra of Michigan, the senior Republican on the House Intelligence Committee, said, “As people start getting an indication that they’re going to Kansas, that they’re going to California, that they’re going to Illinois or to Michigan, people are going to say, ‘No, why would we want them here and put them in a general prison population and make our hometowns a target for terrorists?’ ”

Despite speculation about the possibility of moving large numbers of detainees to a single military jail, like those in Leavenworth, Kan., or Charleston, S.C., government officials and legal experts say it is more likely that inmates would be sent to civilian or military facilities across the country. That would reduce the burden on any single location and make each site less of a potential terrorist target.

Sarah E. Mendelson, a scholar at the Center for Strategic and International Studies who led a study of options for closing Guantánamo, said it would be best if detainees facing prosecution were indicted while still at Guantánamo and then moved into federal pretrial facilities in the United States, which routinely house people accused of murder and other dangerous inmates.

“We’ve had extremely dangerous terrorists tried in various courts and put away,” Ms. Mendelson said.

Federal courts have convicted 145 people on terrorism-related charges since 2001, according to one review, while the military commissions at Guantánamo have been plagued with delays and legal setbacks.

“The Obama administration has to have a little more of a conversation with the American people” about the feasibility of prosecuting terrorism suspects in the United States, she said. “There are plenty of Americans who would want to see some of these guys prosecuted and locked up.”