Lets Not Sort it Out; Obama Considers Allowing Detainees to Plead Guilty With No Trial??? Impossible!!

OK, here we go; US Military law does not really allow for guilty pleas in cases where the death penalty is a possible outcome. According to the New York Times today, President Obama and his administration are looking at ways to make this law less ambiguous. The push to clarify this comes from military prosecutors who don't want to have to put on an entire case if a defendant pleads guilty....really?...Isn't putting on cases sorta what they do?

But American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

Why?
Well, what comes to mind immediately for me is that the military is a very controlling apparatus, just like, say, a terrorist group, in that there is a strong belief system so deeply held that one would gladly die for it, to keep a code of silence, or to become a martyr. When young recruits are broken down and built back up, they are imbued with a code that could maybe, in some off chance, in a system that has been proven time and again to be imperfect, falsely incriminate themselves.
If that part of the law was left "ambiguous" maybe it was so that cases could be decided on their individual merits and depending on the judge. I'm happy to have all of the evidence presented if we are going to put anyone to death, much less a soldier or an enemy combatant. There are certain standards of morality and ethics that have to be upheld, even if it seems like an exercise to these supposed prosecutors.

I'm no law expert, and I'm definitely no military law expert, but in the middle of a certain amount of confusing backpedaling by the Obama Administration, I find it incredibly disconcerting to hear that the idea is being kicked around to allow certain Guantanamo detainees to plead guilty to the 9-11 attack and therefore be executed without a full trial.

This is not because there is some 100% way to know they are guilty. Their stated intent has been to die as martyrs by execution, and because their confessions are completely the fruit of torture techniques that have been proven to elicit false confessions, it would seem to be a little counter intuitive to just give them what they want. It would, however, make the problem of what we did to them go away pretty nicely!

It appears to me that Obama has had to backtrack on the military tribunals because in a regular court these guys might just go free under the weight of how these confessions were coerced out of these very same detainees. The idea of cutting out the tribunal altogether is not only far fetched but pretty unbelievable! We may need a new set of laws and a new sort of prison to deal with this sort of detainee over the long term, but I've got to say that putting them to death on the strength of confession elicited by torture is not the way to go.

As much as the New York Times seems to be sure that this idea has legs in the administration, it seems like a long shot that it could ever work. The administration is, for some reason, going to great lengths to try to prevent the details of torture on the Bush watch from coming out, but in so doing they are implicating the Obama administration as more of the same. This is a slippery slope that none of us wants to start sliding down; and I'm afraid that we are already there.

It seems that alot of this revolves around the 9-11 case and our usual need for vengeance by death penalty. According to the Times:

Lawyers who were asked about the administration’s proposed change in recent days said it appeared to be intended for the Sept. 11 case.
“They are trying to give the 9/11 guys what they want: let them plead guilty and get the death penalty and not have to have a trial,” said Maj. David J. R. Frakt of the Air Force, a Guantánamo defense lawyer.

I can just hear the wheels turning in the conspiracy theorists minds. But, if this is just about that pound of flesh, and also serves to cover up the crimes committed by the Bush Administration, its not worth the long term effect on the law and our constitution, which will be skirted in a way that will not serve anyone but the Bush folks, who really need to be at least investigated!

Further:

Cmdr. Suzanne M. Lachelier, a Navy lawyer for one of the detainees in the Sept. 11 case, Ramzi Bin al-Shibh, said of the Obama administration, “They’re encouraging martyrdom.”

Which is exactly right, and a shortsighted band-aid on a long term problem, exacerbated by the very treatment that is now being glossed over in this way. The Bush answer to martyrs would be "Martyr This, You Asshole...Bring it On!" But that reverberates across the world and creates thousands of more of these same guys. Hiding what happened is not goign to prevent more terrorism; its going to incite it. The best thing that we can do is, if they want to plead guilty, have a trial and then keep them in a small cell forever; take the execution option off the table, at least. The need to make the torture facts go away is a crime in itself, and the need for a pound of flesh in regards to 9-11 is a big example of human weakness. What would Jesus do, after all?

I say that as a non-religious person trying to understand the methods and logic of how these things work in the minds of good religious and community minded people of all ilks. If heaven and martyrdom is the ultimate gift to some, and death is the ultimate punishment to others, where do logical people find a common ground?

Considering that we each live on this earth for a speck of time in the grander scheme of history, and considering that it seems like a relatively long time to us, during which we go through many changes mentally, doesn't it make sense that perhaps the better punishment for a criminal is to make them live out their lives in a high security facility with little contact with the outside world? Is our need to cover up our own misdeeds so strong that we would, in their minds anyway, let them go freely to their reward in heaven? And if there is the slightest possibility for these guys to ever fully realize the gravity of what they've done and to suffer the anguish of having to live with it, day in and day out, into old age, isn't that a worse punishment?
The real story may lie in the fear that we have of realizing the gravity of what was done in our names while we crumbled to the terra and went shopping. We are all guilty of that, but our system and our way of being should allow for us to look at that so that it never can happen again. The ruined cases of these alleged 9-11 conspirators will go down in history as a reason that we don't torture; you cant make a real case out of what you find out that way.



If President Obama is behind this misguided idea, I'm going to have a very hard time reconciling the image that he presents in his wonderful speeches around the world with this ass backward, Bushian idea. I never thought I would agree with President Obama on everything, but on the issue of torture and holding the previous administration accountable, its going to be very hard to get past what seems to be purposeful governmental roadblocks to justice! I've said it before and I'll keep saying it: We can not heal and learn from the past unless and until we look hard at what went on, the good and the bad; there is no moving on! There is only repetition of our mistakes until we fully understand what went into making them. Alot of that may be fear, and fear is an issue that human beings have alot of trouble looking at. But, if we don't look, we can be controlled by it; and thats exactly what happened!! So, face it, and move ahead; but do it in the right way, like real Americans, not scared and embarassed children.

My theory at this point is to wait and see, but I would hope that some sort of check and balance system would kick in in order to give the people a voice. In the meantime, I am heading over to the White House page to drop him a note.

c/p RIP Coco

Obama Following in Bush's Footsteps? Sorry NY Times, But Not So Much!

I guess I just don't like absolutes. Today's New York Times has a front page, (front page internets, and A3 hard copy, I guess,) story about how Obama, like Bush, is leading by second thought. This story and stories like it, infuriate me because apparently the 100 day examiners and the knee jerk liberals, not to mention whats left of the fringy right, would hold the President to every campaign promise regardless of the passage of time or what he might've found out upon taking office. I would say that actually, unlike Bush, Obama will, hopefully, thoughtfully and intelligently weigh what he feels that he has to do to try to dig us out of the hole that Bush dug, and if it means that he might have to rethink things he said even last week, so be it. Our laws may allow some of the bad guys to go free because of Bush's abuse of the system or even system flaws, but our laws are all we've got.

David Sanger, in his news analysis, writes:

Mr. Obama balked on releasing the photographs of prisoners after the military — and his influential defense secretary, Robert M. Gates, the cabinet’s one holdover from the Bush administration — argued that making them public would hand Islamic militants a propaganda coup that could lead to renewed attacks on American forces.

Balked? Really? In the real world, with a real leader, this might be a little more than "oh my god, I cant do that because of the terra!" I call this piece lazy writing by Sanger, who obviously hasn't the inclination to consider that maybe there is more to it. I'm trying to be careful to not blindly follow whatever is coming out of the Obama administration, because my knee jerk tendency always is to question, and especially after the past 8 years, (when many reporters, by the way, were glad to repeat the talking points.) But I am leaning towards trying to give Obama the benefit of the doubt in the issues that he is struggling with. To me, balking on this thing would be to not allow prisoners to have due process. I think that the rest is going to take a little time.

Look, I don't agree with everything that Obama is doing, but then, I never thought I would; did any of you? We liberals have this tendency to turn on our own, blindly, if something has the whiff of a shift right, regardless of what might be best for the country. Do any of us think that Obama would want make us unsafe, much less, for the really skeptical out there, would he want to anger his base? Its unlikely that he is considering winning over anyone with any of these decisions, considering whats left of the right, so maybe, just maybe, there is some reason out there. Would we not want him to listen to the military commanders or his advisors? Wouldn't that be more like Bush, really?

Are we gonna throw open the jail doors and say that they can all just go free? Or does it make more sense to look at the cases and give the prisoners the rights that have been denied them? Chances are that the Bush administration's handling of these cases will not stand up to even the lightest scrutiny and we will lose bad guys anyway; but did any of us think that Obama was gonna head out and put flowers in the muzzles of the guns of the enemy that the Bush administration went so far out of their way to inflame? We can't reverse force so quickly as to put our forces and our country in danger. To act so precipitously would be exactly like Bush!

We are stuck with what Bush left us, and the echo of Cheney telling us that nothing will work except all out destruction; destruction of our rights and of the enemy. Those people don't speak in diplomatic terms and they have a heavy hand. There is danger, and just because Obama has entered into the impossible job of unraveling a terrible knot woven, seemingly purposely, by these freaks, how can we not give him the space to sort this out?

So when Sanger says:

In announcing on Friday that he would retain the military commission system set up by Mr. Bush, even while expanding the rights of detainees to mount a vigorous defense, Mr. Obama suggested that there was no inherent conflict between keeping the nation safe and reasserting values that he and many of his supporters believed had been swept aside during the Bush years.

Isn't the real point that what Obama's first steps consist of is the "expanding the rights of detainees to mount a vigorous defense," part, as opposed to the "system set up by Mr. Bush," part? Are we that easily inflamed? Further, we are treated to the thoughts of one of Karl Rove's ex-staff members (who is not worth mentioning by name because as assholes, these Bush people seem to all have an opinion,) from during his time in the White House, telling us how the left feels that these course changes are "just this side of a betrayal...." And he is so in step with the feelings of the left because...?...he is studying us or something? His kid is a leftie? Screw him and his Rovian propaganda bullshit of planting ideas so that the American people can absorb them and spew them back out!

Military tribunals may be necessary or not, depending on what Obama's team finds out about the detainees. But it seems clear that Obama is interested in extending the prisoners their rights, first and foremost. It may take more that 100 days to close Guantanamo, and it may cost some of the money that the Bushies were busy funneling to their private contractors and cronies. For God's sake, lets take a step back and see what this administration can accomplish. I'm not saying that we shouldn't criticize, but to flat out say that Obama is following in Bush's footsteps is just plain lazy, formulaic, and idiotic!

c/p Brilliant at Breakfast

Third Time's a Charm? The Supreme Court Rules That Guantanamo Bay Detainees DO have rights! Again!

Here we go again.....For the third time, the Supreme Court has ruled that foreign detainees at Guantanamo Bay have the right to challenge their detention in civilian courts in the U.S., and that they have been denied their right to habeas corpus, and all that silly stuff that the Bush administration would have us believe is less important than our "safety."

The 270 men held at Guantanamo as suspected enemy combatants have been in limbo, some for over 6 years, as the lack of due process, evidence, and justification for their imprisonment, has created a smokescreen preventing any realistic procedure or outcome. Many of these men have been tortured, and since the evidence gained by such treatment is not reliable, its been impossible for a full case to be made without the issues becoming bigger than the particular case trying to be heard.. But really, according to first hand accounts of the treatment of prisoners at Guantanamo have left many of them in such states as to make it hard to release them to their home countries, much less any other country that might agree to take them. The longer this goes on, the more we look like the bad guys, (too late,) and if there ever was a case to be made, we have lost it completely ethically and morally, and we have lost the ability to punish the guilty in any reasonable way.

The emotional and physical fallout from this sort of imprisonment and torture will leave lasting effects that should not be underestimated. I guess that John McCain could be cited as an example of a POW who emerged seemingly unscathed from his ordeal, but then the stories of his vicious temper and his vile treatment of those around him, as cited by Cliff Schecter in his excellent book, The Real McCain, coupled with his seeming disconnect with reality and always changing beliefs and opinions, leads one to think that he is still deeply effected by PTSD, and driven by some deep anger to wage more and more war and to get some sort of revenge. Surely some of the detainees could walk among us with little sign of where they've been; like McCain, they will be time bombs ready to explode at any time.

Without due process, its been impossible to classify these prisoners as true "illegal enemy combatants." With no clear classification and with the republican led congress blocking the last 2 SCOTUS rulings on this by passing laws and limiting judicial oversight, a ripple effect has caused any cases that have made it to a court or tribunal to be sent back to lower courts to sort out the legalities. So, how can we know if this new decision will amount to anything at all before the next administration takes office? Since the designation of the detainees is decided by the president himself and his top cabinet, and is very confidential, its impossible to know what it is based on. Add to that the fear that hovers around the disinformation and/or PR campaign that has painted these prisoners as criminals, terrorists, and enemy combatants, and it's unlikely that they will ever see the light of day in any meaningful way. Its also unlikely that justice will be done or that any deterrence that might be fostered by America's ability to kick the collective asses of the bad-guys, will be evident at all.

America, as it stands, appears to be run by a bunch of heartless, bungling, idiots, with an administration that doesn't even follow our own laws or the rulings of our own court. If they don't like the rulings of the highest court in the country, they just go about circumventing them. With this kind of leadership and the track record of the last 7 years, we have no way ever again to claim the moral high-ground, or to claim that spreading our brand of freedom or democracy is superior to the individual evolution of any country.

The really troubling part of this mess is that the dissenting members of the court, being the usual suspects, joined Alito's written dissent which assumed the guilt of the prisoners and stated a political opinion about the danger that America is in (with the implication being that these prisoners who have not been charged or tried are the reason,) as noted in the Washington Post:

Justice Antonin Scalia took the unusual step of summarizing his dissent from the bench, calling the court's decision a "self-invited . . . incursion into military affairs," and was even stronger in a written dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

"America is at war with radical Islamists," Scalia wrote, adding that the decision "will almost certainly cause more Americans to be killed."

I thought that the court was in place to ensure the sanctity of American laws and the way that we do things. If the reason why Scalia dissents as he does, (joined by certain of his colleagues,) is that he feels that these prisoners are, in fact, enemy combatants, with no evidence or due process stating such, or even alleging it, then he is stating mere opinion based on gut feelings and stories drawn out of tortured prisoners who have likely not seen the light of day or another human being, except their torturers, for months. Our justice system doesn't work this way and the highest court is not supposed to issue dissents or opinions based on personal feelings about issues that are clearly political, (and unproven, at that!)

I don't believe that the court's job is to tell us that their decision is based on the danger that America is in if certain prisoners happen to be what one or another of them thinks they may be. I believe that they are supposed to comment on whether the information presented and the treatment of those prisoners follows the LAW! isn't the Supreme court the last stop in decision making and a place where the information and evidence is looked at as already revealed and consideration is given to process? If not, then I would like to see where new evidence...real evidence...was introduced that might indicate that these people are combatants of any kind. If not, and if this is purely an oversight of law decisions, then why is the dissent written in terms of political opinion regarding the safety of Americans? The laws of our country are not in place so that we can cringe behind them, but rather so that we can stand boldly and die to protect them...right? This is just more of the Karl Rovian "Be Very Afraid" brand of fear-politics.

We can guess that these prisoners are bad guys. We can know that they are hardened and hateful, and even that some of them have been driven crazy. We can also guess that they come from a place where bad guys hide out, and we can go with the gut feelings of military interrogators that has filtered down through layers and layers of pundits, informers, and gossips, but unless these guys stand before an open court with independent lawyers, we've got nothing.

The fucking Bush Administration, in person as it turns out, have made the world incredibly less safe by not following the law as it stood. If they hadn't had a field trip to Guantanamo to witness actual interrogation techniques and take it upon themselves to shape a policy that has pieces of the TV show 24, and techniques that have been proven to not work within it, then we might have been able to prove if these guys are criminals or not; we wouldn't have to have them walking free among us if they are guilty. But I think that this whole thing really wasn't about combatants, or safety, or the law; it was about being macho and showing the world that they can change and defy American law anytime they want. That probably buys some sorta tough street cred in the higher echelons of power where the real dealing is done, just for the rush of the huge chess game that is Planet Earth.

So, forgive me if I am not counting my prisoners before they get their hearings. An administration that bends the law wherever they see fit, and a senate with Joe Lieberman leaning to the right, and that slim of a majority, will stand in the way of this too. Soon it will Be Obama's problem, and a mark on his record that he had this horrible war and had to house these poor guys forever because they had nowhere to go....I like to see as much of this as possible get on the record, but honestly, unless we impeach Bush and Cheney (and indict Gonzalez and Rumsfeld, and do something to Condi Rice, which I haven't figured out yet,) we've got nothing.

...except other secret prisons around the world, most notably in Afghanistan, that are doing the same thing, but reportedly worse....

c/p Brilliant at Breakfast

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