No Time to Learn to 'Embrace' Guantanamo

      Forget what you heard or read about Guantanamo: American gulag, recruiting tool for al Qaeda, law-free zone. Think instead of Guantanamo as “a rule of law success story,” an off-shore prison camp that President Obama should embrace rather than criticize.
      Those are the views at least of two experts who have worn white hats during the fierce debates over the policies established by the Bush administration and largely carried over by the Obama administration for holding suspected anti-American terrorists captured overseas.
      Harvard law professor Jack Goldsmith played the role of good guy in the Bush Justice Department as head of the Office of Legal Counsel from October 2003 to July 2004. He has been rightly praised for rescinding the infamous torture memo approved by his predecessor that green-lighted the use of waterboarding and other “enhanced interrogation techniques” against a handful of “high-value” suspects.
      Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution, has done as much as any single individual to scrutinize post-9/11 detention policies and practices. He deserves credit in particular for meticulously refuting the Bush administration’s repeated depiction of Guantanamo prisoners as “the worst of the worst” of al Qaeda or Taliban members.
      In a controversy with national security hawks on one side and civil liberties doves on the other, Goldsmith and Wittes have positioned themselves as owls, unwilling to sacrifice either security or liberty — or to carry either to an extreme. So their views today, as Goldsmith set out in a recent law school appearance and Wittes wrote in a Brookings blog, warrant respectful consideration. Even so, Goldsmith is wrong to call current policies a success, and Wittes wrong to call on the president to embrace them.
      Both Goldsmith and Wittes start with the political context that they say make closing Guantanamo an impossibility. It has been two years since Obama made his post-inauguration pledge to close Guantanamo within one year. A Democratic-controlled Congress balked at approving funds for closing Guantanamo in 2009, even before the uproar over a possible New York City trial of Khalid Sheikh Mohammed, the self-proclaimed architect of the Sept. 11 attacks. By May 2010, Congress had crafted provisions to bar bringing Guantanamo detainees to the United States for trial or transferring them to other countries without all-but-impossible to meet security conditions.
      Obama complained of those restrictions even as he signed them into law on Jan. 7 as part of the Defense Department authorization for the current fiscal year. Where President Bush sometimes refused to bind himself to follow congressional restrictions on presidential power, Obama said only that he would seek to repeal the limitations and in the meantime try to “mitigate” their effects.
      With Republicans now in control of the House of Representatives, outright repeal is a non-starter. Wittes, who has pushed some of his ideas on Capitol Hill in the past, proposes a deal. Obama should “embrace” Guantanamo and keep it open not only for the current prisoners but also for all future counterterrorism detainees captured abroad. In return, Wittes suggested, Obama should ask Congress to ratify military detention with the review procedures established for Guantanamo prisoners and to lift the restrictions he reluctantly signed into law.
      As Wittes wanly concedes, “I do not know if there is a partner in Congress for this deal.”
      Like Wittes, Goldsmith sees Obama’s pledge as unredeemable. “Guantanamo is not going to be closed,” he said in a keynote speech at a program at American University’s Washington College of Law on Feb. 18. “It’s not going to happen.”
      Goldsmith also echoes Wittes’ point that the Guantanamo of today is not the law-free zone created by the Bush administration. Guantanamo prisoners can challenge their detention via habeas corpus in federal court — thanks not to the president or Congress but to the Supreme Court. Obama has established administrative review procedures for prisoners who may still be held even after losing habeas corpus cases. In Goldsmith’s view, these are “unprecedented” protections for people held in military detention.
      For Goldsmith, military detention at Guantanamo on these terms is the least bad of the actual alternatives for suspected terrorists. Civilian trials are ruled out, military commissions problematic, and transfer to other countries increasingly difficult. He worries most that in the absence of a clear detention policy, military and intelligence personnel may simply conclude that the best option on an undefined battlefield is to kill, not capture. That course, he says, is “not good for human rights, not good for intelligence collection, and not good for national security.”
      The supposed dilemma seen by Goldsmith and Wittes is not, however, an inevitable aspect of the war on terror. The 48 Guantanamo detainees who have been deemed too dangerous to release but “not feasible for prosecution” are thought to be in that category mostly because of torture-tainted evidence inadmissible in civilian or military tribunals. With interrogation policies cleaned up — as the Obama administration claims — future detainees ought to be amenable to trial in one or the other forum.
      Instead of real trials, Goldsmith and Wittes acquiesce in a system of detention for the duration of the no-end-in-sight war on terror with limited review first through habeas corpus and then by an administrative board. Whatever changes may have been instituted at Guantanamo, this is not a system that the United States can convincingly sell to a skeptical world as fair and just.
      Postscript: In a respectful and thoughtful reply, Ben Wittes says that I underestimate the number of Guantanamo detainees who will never be tried and that I erred in attributing the impossibility of prosecution primarily to torture-tainted evidence. Under deadline haste, I did fail to check the Guantanamo Detainee Task Force Report’s explanation of the difficulties of prosecution, which primarily include evidence-gathering and charge-bringing problems. In my blog, I suggested torture-tainting will fade as a problem; Ben says those other issues will persist. I would hope that military and intelligence agents will do better in those regards in the future and thus that those problems too will recede. As to Ben’s other points, I will simply say that I could not hope for a better, wiser correspondent with whom to agree to disagree.

Obama's DOMA Stand Could Doom Other Anti-Gay Laws

      The Obama administration will no longer defend the central provision of the 1996 law that prevents the federal government from providing marriage-based benefits to legally married same-sex couples.
      In announcing the new stance on Wednesday (Feb. 23), Attorney General Eric H. Holder Jr. said the government has concluded that all anti-gay laws should be subject to “heightened scrutiny” in the courts. The Defense of Marriage Act (DOMA), now being challenged in federal cases in Massachusetts, Connecticut and New York, cannot meet that standard, Holder said.
      The government’s call for heightened scrutiny, if adopted by courts, could doom other anti-gay laws, including the bans on same-sex marriages on the books in 38 states.
      Gay rights groups hailed the administration’s move, which Holder said was personally approved by President Obama. Evan Wolfson, president of the New York City-based Freedom to Marry, praised Obama and Holder “for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional.”
      Laws such as DOMA “must be looked at with looked at with skeptical eyes, not rubber-stamped,” Wolfson said.
      The government announced the position in advance of filings due March 11 in the two most recent challenges to DOMA in federal district courts in Connecticut and New York. For appellate purposes, those two states are both in the Second Circuit. Plaintiffs in those cases, legally married in their home states, say DOMA prevents the federal government from providing them specified financial benefits, such as tax breaks available to other married couples, Social Security benefits and employee health benefits.
      The government had previously defended the constitutionality of DOMA in a case filed in Massachusetts, which is in the First Circuit. In that case, a district court judge in July 2010 ruled the law unconstitutional.
      The government adopted the new position, Holder explained, because the Second Circuit, unlike the First, has no binding precedent on what standard of review to apply to laws that treat gays and lesbians differently from other people. With the government forced to address the issue for the first time, Holder said, “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny.”
      The Massachusetts case is currently pending before the First U.S. Circuit Court of Appeals. The First Circuit applies a relaxed “rational basis” test to laws aimed at gays and lesbians. In his ruling in July, U.S. District Court Judge Joseph Tauro said DOMA could not satisfy that test because it serves no legitimate government purpose.
      Holder announced the new position in a statement as well as in a letter to House Speaker John Boehner. The Justice Department is required to notify Congress whenever it concludes that it will not follow the normal practice of defending a law in court despite policy disagreements with the measure.
      On Capitol Hill, leading Republican lawmakers criticized the move. “The Obama administration is making a tragic mistake in walking away from the defense of traditional marriage,” said Rep. Jim Jordan, an Ohio Republican who chairs the Republican Study Conference, a group of GOP conservatives.
      In the letter, Holder said that laws based on sexual orientation meet four established criteria for triggering heightened scrutiny when challenged in court. Gays and lesbians, he said, have suffered a “significant history of purposeful discrimination,” both by government and private entities. In addition, Holder said that sexual orientation is now widely recognized as an “immutable” characteristic, that gays and lesbians have “limited political power” and that sexual orientation “bears no relation to ability to perform or contribute to society.”
      Holder said the government will notify the First Circuit of its new position. The notification to Congress affords lawmakers or others the opportunity to take steps to defend the law in court if they want. Boehner’s office had no immediate response to the move.
      The new stance could affect the government’s defense of the “don’t ask, don’t tell” policy on gays in military. That policy remains in effect despite the law approved by Congress and signed by Obama in late December that calls for it to be repealed after a specified certification by Obama, the secretary of defense and the chairman of the Joint Chiefs of Staff. A federal judge in California ruled the policy unconstitutional in October; the government appealed the case to the Ninth U.S. Circuit Court of Appeals, which refused the government’s request last month to put the case on hold while awaiting the Pentagon review.

Justices’ Off-Bench Roles Put Court’s Reputation at Risk

     Within a week of President John F. Kennedy’s assassination on Nov. 22, 1963, President Lyndon B. Johnson created a commission to investigate the slaying and leaned hard on Chief Justice Earl Warren to agree to serve as chairman. Warren reluctantly took on the assignment and over the next seven months led a highly limited review of evidence gathered by others that concluded — just as Johnson wanted — that Lee Harvey Oswald had acted alone: no conspiracy.
     Warren apparently managed to juggle the commission’s work with his Supreme Court duties, but the commission’s report is now recognized as woefully inadequate. The fault was not Warren’s: the CIA withheld important evidence of Oswald’s activities and connections. But wherever the blame may lie, Warren’s extrajudicial assignment did no good for him or for the court.
     No sitting Supreme Court justice has taken on an analogous off-the-bench assignment since then, apart from the chief justice’s statutorily designated position as chancellor of the Smithsonian Institution. In that role too, chief justices have not shined. Chief Justice William H. Rehnquist in 2001 helped authorize a whopping salary increase for the Smithsonian’s general secretary, who resigned in 2007 after disclosures of absenteeism and authoritarianism. Despite the governance crisis, Rehnquist’s successor, John G. Roberts Jr., that year helped water down recommended reforms, including a reduction of the chief justice’s role to non-voting board member.
     The lesson of these episodes seems clear: justices should stick to their knitting. But Noah Feldman, a Harvard Law School professor and former Supreme Court law clerk, argues that the justices should spend more time off the bench, even to the point of taking on political responsibilities and engaging in political activities.
     The justices’ “disengagement from public life,” Feldman writes in an op-ed in The New York Times, stems from “the imagined ideal of the cloistered justice.” This monastic imperative, he says, has real costs. “Isolated justices make isolated decisions,” Feldman writes. The evidence: Clinton v. Jones (1997), with its naïve assumption that allowing a civil suit (see: Paula Jones) against a sitting president (see: Bill Clinton) would not interfere with his duties as chief executive (see: impeachment).
     Feldman writes against a specific context: the current controversy over off-bench activities of conservative justices Antonin Scalia and Clarence Thomas. Common Cause is calling for an ethics investigation of Scalia’s and Thomas’s participation in events sponsored in 2007 and 2008, respectively, by the billionaire Charles Koch, bankroller of conservative and libertarian causes. And Scalia came in for widespread criticism — from the New York Times editorial board, among others — for his Jan. 24 appearance before a closed-door meeting of the House Tea Party Caucus.
     With reason, Feldman describes the controversy as “suspiciously partisan.” Common Cause, the campaign-finance reform group, is straining to argue that Scalia and Thomas were so beholden to Koch to require recusal from the case, Citizens United v. Federal Election Commission (2010), that freed Koch’s company and others to spend freely on political activities. Scalia’s reported lecture on constitutional interpretation is more problematic, but mainly because it was behind closed doors to an overtly partisan group.
     Feldman is not content, however, to knock down the attacks on Scalia and Thomas. With a selective retelling of history, Feldman argues that Supreme Court justices have committed politics ever since Chief Justice John Marshall, who served as secretary of state for the last month of John Adams’ presidency after having assumed his position on the court. Charles Evans Hughes accepted the Republican nomination for president in 1916 while still serving as an associate justice. And Robert Jackson took a year’s leave in 1945-46 to serve as chief prosecutor at the Nuremberg war crimes trials.
     The brief overlap of Marshall’s dual roles is de minimis and, in any event, unthinkable in present day. So too, given the realities of contemporary campaign finance, a justice’s active quest for political office without leaving the bench. As for Jackson, he was praised for his opening and closing statements at the Nuremberg trials, but faulted for intemperance and weak cross-examination. And the court was left to decide cases for a full term with eight members and, after Chief Justice Harlan Fiske Stone’s death in late April 1946, only seven — surely at some loss.
     As a clerk to the reclusive justice David H. Souter, Feldman saw the monastic ideal at its extreme. He is right to think — without saying so — that the court could benefit from justices who come not from lower courts but from the political world. But he is wrong to excuse Chief Justice Fred Vinson for giving President Harry Truman a green light to seize the steel mills and wrong to lightly pass over Abe Fortas’s poor judgment in advising LBJ while on the bench.
     Feldman is especially wrong to argue for politically engaged justices with the court split as never before between Republican- and Democratic-appointed blocs. The current division pitting five conservative Republicans against four liberal Democrats feeds the cynical view that Supreme Court cases are in the end just politics. The justices can see and interact with the world in many venues: judicial conferences, college campuses, civic clubs, and so forth. But with every partisan appearance, a justice puts at risk his or her reputation as well as the court’s commitment to equal justice for all.

No Accounting for CIA's Mistakes

      “Frances” was a “hard-charging” CIA counterterrorism analyst with no field experience in January 2004 when she pushed the agency into kidnapping a German citizen, Khaled el-Masri, who was then imprisoned and tortured at a secret “black site” in Afghanistan. Others at the agency’s Counterterrorism Center doubted fingering el-Masri as an anti-American terrorist, but Frances persisted and won approval for the snatch from Elizabeth, one of the agency’s lawyers.
      Barely three months later, the CIA realized it had made a mistake. Agents had confused el-Masri with a suspected al Qaida operative with an almost identical name: Khalid al-Masri. El-Masri was flown from Afghanistan to Albania, where he was released at night without either apology or funds.
      Frances’s mistake led to an embarrassing diplomatic face-off with Germany, a helpful U.S. ally in the war on terror, and a still continuing legal battle in U.S. courts and international tribunals. But, according to a damning, 1,400-word account by Associated Press reporters Adam Goldman and Matt Apuzzo, Frances was not fired, suspended or even reprimanded. Instead, seven years later, Frances runs the CIA’s Global Jihad unit charged with hunting down al Qaida. Elizabeth, the lawyer, was reprimanded, but she too still works for the agency, now as a legal adviser to the Near East division.
      “That botched case,” Goldman and Apuzzo write, “is but one example of a CIA accountability process that even some within the agency say is unpredictable and inconsistent. In the years after the Sept. 11, 2001, terrorist attacks, officers who committed mistakes that left people wrongly imprisoned or even dead received only minor admonishments or no punishment at all . . . .”
      The AP story, published on Feb. 9, was noteworthy for the decision to partially identify undercover CIA personnel responsible for some of the agency’s fiascoes. As explained in the story, the AP believed that identifying individuals by first name enhanced the credibility of the report without risking blowing their cover. (“Frances” has a distinctive first name, so her middle name was used instead.) A CIA spokesman called the AP’s decision “nothing short of reckless,” but the story noted that the agency did not go all out to argue against the partial identifications.
      The never-held-accountable CIA agents, according to the AP story, also include Paul, the agency’s top man in Afghanistan, and Matt, who ran the prison where a suspected terrorist froze to death in 2002. The CIA’s inspector general reportedly “faulted” both men, but “in the end” neither was disciplined. Paul is now reportedly chief of the Near East division; Matt is said to have completed assignments that included deputy chief of tribal operations in Pakistan.
      Only mild discipline was reportedly imposed for a CIA interrogator’s “mock execution” of a suspected terrorist at a secret prison in Poland. As recounted in an inspector general’s report, the interrogator, identified by the AP as Albert, put an unloaded gun and a bitless drill to the suspect’s head. Albert was reprimanded, according to the AP account, and his boss, Mike, retired during the investigation. But Albert stayed on until retirement and has now returned as a contractor. And Paul, the Poland station chief who witnessed the incident but failed to stop it, now runs the Central European Division.
      CIA spokesman George Little predictably defended the CIA’s record on discipline. “Any suggestion that the agency does not take seriously its obligation to review employee misconduct — including those of senior officers — is flat wrong,” Little said. The reporters quoted an unnamed U.S. intelligence official as saying that about 100 employees, including “more than a dozen senior officers,” have been subjected to disciplinary review under the current director, Leon Panetta. “Many were fired or resigned,” the story stated.
      Goldman and Apuzzo have scored other scoops in their reporting on the CIA. In December, they reported that the CIA had agreed to cover at least $5 million in legal fees for the two psychologists, Jim Mitchell and Bruce Jessen, who designed the agency’s now infamous “enhanced interrogation techniques” in the early days of the post-9/11 war on terror. Mitchell and Jessen personally waterboarded al Qaida facilitator Abu Zubaydah in 2002 — not once or twice, but 83 times, as officially acknowledged. Today, Mitchell and Jessen are being defended in Justice Department investigations by high-price Washington lawyers under an indemnity agreement that they requested in evident recognition of the dubious legality of their techniques.
      That story, like the more recent one, got some but enough attention. Some newspapers picked up the non-accountability story, but the New York Times, as one important example, only noted it in a non-print blog. The ACLU said the CIA’s failure underscores the need for judicial accountability, but that has been lacking. The government derailed El-Masri’s suit against CIA contractor airlines by claiming a state secrets privilege. El-Masri has other proceedings pending in international tribunals.
      Meanwhile, a controversial Justice Department investigation by career prosecutor John Durham has produced nothing so far. The statute of limitations for the notorious destruction of videotapes of waterboarding episodes passed in November with no prosecutions. In another country, unaccounted for human rights violations would warrant criticism from the U.S. government. For the CIA, however, the AP story indicates that non-accountability was — and perhaps still is — business as usual.

Obama’s Sluggish Support for Democracy in Egypt

      The Obama administration is getting mixed reviews for its handling of the political crisis in Egypt — and deservedly so. President Obama has put the administration’s prestige and his own on the line in calling on Egypt’s embattled president Hosni Mubarak to make way for a transition to a more democratic government. In the administration’s first two years, however, the president and his foreign policy team gave little more than lip service to the cause of promoting democracy in Egypt.
      Obama himself set the administration’s course with his much heralded speech at Cairo University in June 2009 that promised U.S. support for democratic reform in the Muslim world and elsewhere but avoided any criticism of Mubarak. Two months later, Obama hosted Mubarak at the White House but again made no public comment on the Egyptian government’s repressive policies.
      The president’s public silence on Egyptian human rights abuses reflected the administration’s general policy of distancing itself from what Obama’s people viewed as the Bush administration’s largely ineffectual “freedom agenda.” But the administration was doing less than speaking softly. It was also dialing back U.S. aid for democratization in Egypt even as Mubarak was tightening his government’s grip.
      The human rights organization Freedom House underscored the concern about democracy-related funding in Egypt in its annual report on U.S. aid for democracy and human rights in April. The report complained that the administration had apparently failed to deliver on a promise to reverse a decade-long decline in funding from the U.S. Agency for International Development for “governing justly and democratically” (GJ&D) programs in Egypt. Worse, the report noted “serious concerns” about the administration’s decision to stop funding civil society groups unless they were registered with the Egyptian government.
      The policy essentially gave Mubarak’s government veto power over what groups were to receive funding from USAID, the report concluded. “I have absolutely no confidence that that money was used to strengthen democratic institutions and processes,” says Sarah Trister, Freedom House’s congressional liaison officer and author of the report. “Very, very precious little of it went to civil society groups that were genuinely democratic.”
      Egyptian activist Bahey El Din Hassan was also critical when he was in Washington last week for meetings with administration officials on the current crisis. "We have a lot of excellent speeches, excellent words, excellent rhetoric through more than two years from this administration," Hassan, director of the Cairo Institute for Human Rights Studies, told NPR’s White House correspondent Ari Shapiro. “But on the ground we have nothing.”
      The administration is not alone in soft-pedaling criticism of Mubarak’s government. As Josh Rogin pointed out in the foreign policy blog Cable last week [Feb. 2], the Senate failed to act last year on a bipartisan resolution urging Mubarak to allow free elections, lift the 30-year-old emergency law, release political prisoners and institute other reforms. Rogin quoted Senate aides as saying that two senators played important roles in bottling up the resolution: California Democrat Dianne Feinstein, chair of the Intelligence Committee, and Mississippi Republican Roger Wicker. Feinstein reportedly voiced concerns about U.S.-Egyptian cooperation on intelligence matters. Rogin noted that Wicker’s fellow Mississippian, former Rep. Robert Livingston, is with a lobbying firm that has a long-term contract to represent the Egyptian government.
      The Senate belatedly passed the resolution last week [Feb. 3], but the executive branch makes foreign policy, not the Senate. And the Obama administration was remarkably clumsy as the uprising was getting under way in Egypt in late January. In a Jan. 25 news conference, Secretary of State Hillary Rodham Clinton called the Mubarak government “stable.” On the PBS NewsHour two days later, Vice President Joe Biden resisted labeling Mubarak a dictator, calling him instead “an ally.”
      Over time, the administration has moved to get the U.S. message right. Obama and Clinton have spoken out strongly to support the right of peaceful protest, condemn violence against the protesters as well as against journalists, and impress on Mubarak and other officials the need for an orderly transition to begin — as Obama put it — now.
      The situation in Egypt is delicate. Mubarak’s mood reportedly changes from day to day, the protesters in the streets are adamant on his removal, and the military’s stance is uncertain. In the United States, Obama faces backbiting from human rights groups at the same time that neoconservatives are laying the groundwork for a “Who lost Egypt?” inquisition in the event of chaos or a militant Islamist regime.
      At this point, aid to democracy groups in Egypt can have little impact. The time for bolstering U.S. aid was years ago. With some Republicans calling for eliminating foreign aid altogether, the prospect for increasing democracy assistance to other countries is less than favorable. Indeed, apart from Afghanistan and Pakistan, the administration’s request for democracy assistance in the coming fiscal year is down 1.5 percent from the current year.
      Trister acknowledges that it is impossible to measure the impact of the assistance, but she is convinced it pays off. “All over the world, we’re making relationships with civil society groups. We’re bolstering their ability to be part of their government,” she says. “In talking with activists on the ground, they say these programs do have value.”