hilzoy

The Abramoff Case Widens…

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by hilzoy From the WaPo: “The Justice Department’s wide-ranging investigation of former lobbyist Jack Abramoff has entered a highly active phase as prosecutors are beginning to move on evidence pointing to possible corruption in Congress and executive branch agencies, lawyers involved in the case said. Prosecutors have already told one lawmaker, Rep. Robert W. Ney … Read more

Dumbest. Column. Ever.

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by hilzoy

Kevin Drum warned me not to click this link, but silly me had to go ahead and click it anyways. When I did, I found one of the stupidest columns of all time. In it, David Gelernter wonders why students now are so much more career-minded than when he was in college. He thinks he’s figured it out:

“Why the big change between now and then? Many reasons. But there’s one particular reason that students seem reluctant (some even scared) to talk or think about. In those long-ago days, more college women used to plan on staying home to rear children. Those women had other goals than careers in mind, by definition. They saw learning as worth having for its own sake; otherwise why bother with a college education, if you weren’t planning on a big-deal career? (…)

In the days when many college-trained women stayed home to rear children, the nation as a whole devoted a significant fraction of all its college-trained worker-hours to childrearing. This necessarily affected society’s attitude toward money and careers. A society that applauds a highly educated woman’s decision to rear children instead of making money obviously believes that, under some circumstances, childrearing is more important than moneymaking. No one thought women were incapable of earning money if they wanted or needed to: Childrearing versus moneymaking was a genuine choice. (…)

But all that changed with feminism’s decision to champion the powerful and successful working woman. Nowadays, feminists and many liberals are delighted when women make careers in large corporations, which are still the road to riches and power in this country. (…)

In many ways, life today is a lot easier than it was in 1960. But don’t kid yourselves. The age that rated childrearing higher than money-grubbing and intellectual exploration higher than career preparation had it exactly right. We might come to miss what we had then, but we are never going back; no nation has ever sacrificed wealth for intangible spiritual satisfactions.

In some important ways, this society has made a tragic but probably inevitable (and certainly irreversible) mistake. Crying about it is senseless. Denying it is cowardly.”

Despite the scary, scary nature of this topic, I’m going to brave my deepest innermost fears and discuss it. A veritable Profile in Courage, that’s me — at least until I get around to disagreeing with Gelernter, at which point I will magically transform myself into a coward. (I’ve been drinking Polyjuice Potion again.)

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Paradox

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by hilzoy Via Unqualified Offerings: Julian Sanchez has a good article on torture that includes this, about apologists for torture: “Implicit in many of their arguments is the notion that there’s something contemptibly fainthearted about those who want to hew to the principles of basic decency fit for a nation that styles itself primus inter … Read more

I Love This Sentence

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by hilzoy From Pharyngula, a glorious sentence to be thankful for: “This video from the BBC of slugs mating is spectacular—it’s got mucus ropes, everting male organs, entwining penises, and penises forming a translucent flower-like globe.” Before blogs, I would never, ever have encountered that sentence, and my life would have been the poorer for … Read more

Thanksgiving

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by hilzoy Here is George Washington’s first Thanksgiving Proclamation. Reading it, I am struck by the unquestioned assumption that the God Washington asks us to thank is a real being: a person with a mind of his own, not the object of some sort of vague spiritual gesture. He is, moreover, a being who is … Read more

Quarantine!

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by hilzoy

On October 4, President Bush said this at a press conference:

“The policy decisions for a President in dealing with an avian flu outbreak are difficult. One example: If we had an outbreak somewhere in the United States, do we not then quarantine that part of the country, and how do you then enforce a quarantine? When — it’s one thing to shut down airplanes; it’s another thing to prevent people from coming in to get exposed to the avian flu. And who best to be able to effect a quarantine? One option is the use of a military that’s able to plan and move. And so that’s why I put it on the table. I think it’s an important debate for Congress to have.”

When he made that remark, I thought: the idea of using quarantines in the face of the threat of disease is exactly the sort of idea that might occur to some people for bad reasons, and perhaps be opposed by others for equally bad reasons, especially in the face of an emerging infectious disease. Just think back to the early 1980s, when AIDS first hit the news: there were all sorts of calls for quarantines; kids with AIDS were prevented from going to school or, in one case, allowed to sit in a glass box in the classroom; and so on and so forth. This was a completely inappropriate reaction to AIDS: for reasons that will become clear later, AIDS is a terrible candidate for quarantine. Nonetheless, they were very common then (and some people still advocate them to this day.)

It seemed to me that it would be a very good idea to write something about quarantines and the circumstances in which they can and should be used, so that as many people as possible outside fields like public health will already have thought about them before the need arises and emotions get heated. That way, there will be more people scattered about the general populace who can assess calls for quarantines if avian flu or some other new and dangerous infectious disease hits. And the more such people there are, the less likely we will be to do something stupid.

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???!!!

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by hilzoy [Second Update (first is at the bottom): I can’t recall posting something and regretting it so quickly. I did not mean to suggest that I knew this story to be true, or even particularly believed it, but I also had forgotten that the Mirror was the paper that broke the detainee abuse story … Read more

Scanlon Pleads. The Guilty Get Nervous. Good.

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by hilzoy

From the Washington Post:

“A onetime congressional staffer who became a top partner to lobbyist Jack Abramoff pleaded guilty yesterday to conspiring to bribe a congressman and other public officials and agreed to pay back more than $19 million he fraudulently charged Indian tribal clients.

The plea agreement between prosecutors and Michael Scanlon, a former press secretary to then-House Majority Whip Tom DeLay (R-Tex.), provided fresh detail about the alleged bribes. The document also indicated the nature of testimony Scanlon is prepared to offer against a congressman it calls “Representative #1” — who has been identified by attorneys in the case as Rep. Robert W. Ney (R-Ohio).

Scanlon, a 35-year-old former public relations executive, faces a maximum five years in prison and a $250,000 fine, but the penalty could be reduced depending on the level of his cooperation with prosecutors. His help is expected to be crucial to the Justice Department’s wide-ranging Abramoff investigation, which began early last year after the revelation that Scanlon and the lobbyist took in tens of millions of dollars from Indian tribes unaware of their secret partnership to jack up fees and split profits.

Investigators are looking at half a dozen members of Congress, current and former senior Hill aides, a former deputy secretary of the interior, and Abramoff’s former lobbying colleagues, according to sources familiar with the probe who spoke on the condition of anonymity. Because of his central role in much of Abramoff’s business, Scanlon could be a key witness in any trials that arise from the case.”

This is really, really important.

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Failures Of Will

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by hilzoy

“I’m quite sure that one never makes fundamental mistakes about the thing one really wants to do. Fundamental mistakes arise out of lack of genuine interest. In my opinion, that is.”

“I made a very big mistake once,” said Harriet, “as I expect you know. I don’t think that arose out of a lack of interest. It seemed at the time the most important thing in the world.”

“And yet you made the mistake. Were you giving all your mind to it, do you think? Your mind? Were you really being as cautious and exacting about it as you would be about writing a passage of fine prose? (…) One always makes surface errors, of course. But a fundamental error is a sure sign of not caring.”

— Dorothy Sayers, Gaudy Night

I have always thought that this statement is both true and very important, though there are two exceptions to it. First, it is true of some things (like philosophy) that getting the fundamentals right is very difficult, and in those cases, I don’t think it’s true that if you really care about something, you won’t make fundamental errors. You just won’t make careless ones.

Second, and more interestingly, I think that there are some people who just don’t see that really caring about something requires thinking about it very, very clearly. Admittedly, it’s hard to see how someone could not see that unless there were a deep problem with his understanding of his relationship to the world; but there are people who have such problems. Imagine, for instance, someone who, as a child, got everything he wanted just by screaming, and who was either sufficiently incurious not to want things he couldn’t get this way, or sufficiently impatient not to stick with the actual thinking long enough to get what he wanted. A person like that might just not see that when you really, really want to achieve something, you really need to think clearly about how to get it. In him, “wanting something” would involve not bending all his effort and his will to achieving it, but screaming more and more loudly at the world.

We could debate whether or not to say that such a person is capable of caring about anything; and that debate would be, in certain respects, like one I used to have with my co-workers when I used to work at the battered women’s shelter, about whether or not many abusive husbands loved their wives. On the one hand, they certainly felt something towards them, and that feeling had something in common with love. They could be wildly romantic; they needed their wives desperately; they were terrified of losing them. On the other hand, however, there was the plain fact that no feeling that regularly results in a man’s slamming his wife’s head into the wall could possibly be love. We usually ended up concluding that they felt something that was the closest thing to love that they were capable of feeling; but that it wasn’t close enough. I feel similarly about people whose version of “caring about things” does not involve at least trying to think clearly about them.

Otherwise, however, I think that it is absolutely true that if you really want something, you will not make fundamental or careless mistakes about it. And this is a test of how much people do want something: are they careless about the task of getting it, or do they work for it as carefully, as thoughtfully, and as hard as they possibly can?

With that as preface, I want to turn to Charles’ claim that “success [in Iraq] ultimately depends on our will to prevail”. I have always thought that transforming Iraq from a dictatorship into a functioning democracy would be incredibly difficult under the best of circumstances, and therefore that however much will and resources we brought to the table, we would also need an awful lot of luck. But I also think that we have had several tremendous failures of will. If we fail, these will be a very large part of the reason. If we succeed, it will be despite the fecklessness of those who “fear not defeat, nor dishonor, nor an Iraq under the terrorist heel” (to quote Josh Trevino.)

So herewith, a catalog of some of the failures of will that got us to this point.

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Department of Huh?

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by hilzoy

Haymaker

You are one of life’s enjoyers, determined to get the most you can out of your brief spell on Earth. Probably what first attracted you to atheism was the prospect of liberation from the Ten Commandments, few of which are compatible with a life of pleasure. You play hard and work quite hard, have a strong sense of loyalty and a relaxed but consistent approach to your philosophy.

You can’t see the point of abstract principles and probably wouldn’t lay down your life for a concept though you might for a friend. Something of a champagne humanist, you admire George Bernard Shaw for his cheerful agnosticism and pursuit of sensual rewards and your Hollywood hero is Marlon Brando, who was beautiful, irascible and aimed for goodness in his own tortured way.

Sometimes you might be tempted to allow your own pleasures to take precedence over your ethics. But everyone is striving for that elusive balance between the good and the happy life. You’d probably open another bottle and say there’s no contest.

What kind of humanist are you? Click here to find out.

— Excuse me? It’s a really fun quiz, and it asks really interesting questions, and, yes, I did choose a vacation in a large house in Tuscany with a pool and all my friends and family over retracing Darwin’s voyage to the Galapagos, and no, my idea of the perfect garden is not rectilinear, and yes, I do have fun, but: this is the most inaccurate summary of my personality anyone has ever come up with. I was not attracted to atheism, or anything else, by the prospect of liberation from the Ten Commandments. If I don’t see the point of abstract principles, I’m not sure who does. I mean, for heaven’s sake, I’m a Kantian moral philosopher! I loathe both Shaw and Brando (well, maybe not the very young Brando.) But my favorite actor is Alan Rickman, and as for people I admire, there are lots of them, but tinny playwrights with thin reedy philosophies are not among them.

Sheesh.

On the other hand, do you think the sexiest man alive would be more likely to appear in my living room if I were a haymaking Kantian? If so, I’ll just have to curl up with Saint Joan.

Consider this an open thread.

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False Economies

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by hilzoy Suddenly, the Republicans have decided that all new spending has to be paid for in budget cuts. So what new spending have they decided to delay? From Reuters, via Effect Measure: “World health experts said they expected to see more human bird flu infections in China, even as the U.S. Congress stalled funding … Read more

Still More Torture

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by hilzoy

From ABC (h/t Katherine):

“Harsh interrogation techniques authorized by top officials of the CIA have led to questionable confessions and the death of a detainee since the techniques were first authorized in mid-March 2002, ABC News has been told by former and current intelligence officers and supervisors.

They say they are revealing specific details of the techniques, and their impact on confessions, because the public needs to know the direction their agency has chosen. All gave their accounts on the condition that their names and identities not be revealed. Portions of their accounts are corrobrated by public statements of former CIA officers and by reports recently published that cite a classified CIA Inspector General’s report. (…)

The CIA sources described a list of six “Enhanced Interrogation Techniques” instituted in mid-March 2002 and used, they said, on a dozen top al Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe. According to the sources, only a handful of CIA interrogators are trained and authorized to use the techniques:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda’s toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

“The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law,” said John Sifton of Human Rights Watch.”

Great. And, as others have said before, it doesn’t even work:

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I Guess There’s A First Time For Everything…

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by hilzoy But I never, ever thought there would be a first time for this: I agree with one of People Magazine’s picks for ‘Sexiest Man Alive’. Until today, my track record for finding these picks incomprehensible was unbroken. Mel Gibson? Feh. Tom Cruise? Please. This year’s top pick, Matthew McConaughey? Eww. I thought it … Read more

Amazing

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by hilzoy NYT: “A North Carolina man who was charged yesterday with accepting kickbacks and bribes as a comptroller and financial officer for the American occupation authority in Iraq was hired despite having served prison time for felony fraud in the 1990’s. The job gave the man, Robert J. Stein, control over $82 million in … Read more

Let’s Rock And Roll!

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by hilzoy

Enough with the serious stuff. Here, via Steve Clemons, is the worst right-wing rock I think I have ever heard. It’s called ‘Bush Was Right’, by, well, the Right Brothers. You must, must, listen to the sample. Just do it. I’ve posted the lyrics on the flip, so you can sing along. And you will surely want to. Heh heh.

Seriously, though, I think the left writes much better right-wing music than the right does. Just think of the songs in Bob Roberts: the wonderful ‘thump-ada thump-ada’ bass behind these lyrics:

“Some people are rich
Some people are not
But they complain and complain and complain and complain and complaaaaaaiin!”

Or the plaintive, Stevie-Nicks-imitates-Joan-Baez folkie singing:

“We are marching for the children
We are marching for the poor
We are marching for self-interest
We’ll march forever more…”

(if you haven’t seen Bob Roberts, you must. The world-view is a bit wacky and conspiratorial for my taste, but the music is great. Plus, you get to see Alan Rickman, playing a campaign manager accused of swindling an S&L and a charity while running drugs for the CIA, decline to answer questions about this, and then bark: Excuse me; I have to go pray.”)

So here’s the deal: if anyone wants to write a parody right-wing rock song, do it. Better still, if anyone wants to record a parody right-wing song (paging xanax), do it, put it on the web somewhere, and post the link. If you don’t have space, email the music file to me (within reasonable limits), and (since I have some space on my .mac account) I’ll host it and link to it here. We cannot allow the unintentional self-parodies of the right to go unanswered. Best entry wins a virtual gold star.

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Requiem

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by hilzoy

As Katherine noted last night, the Senate approved the compromise Graham/Levin/Kyl amendment that she wrote about the night before. Like Katherine, I don’t know what to make of it, beyond the following obvious points. First, it’s a lot better than the original Graham amendment. I think that this improvement had a lot to do with the pressure brought to bear by people who were outraged. Anyone who called or wrote contributed to this, and can feel proud, as can those who worked behind the scenes in other ways.

This is how democracies are maintained: not just by having (for instance) a bill of rights and a democratic constitution, but by having free citizens who work to protect those rights even when they are not personally affected. By working to block this amendment, all of you have helped to make it true that we are not a country where fundamental rights can be stripped away without anyone bothering to raise his or her voice. Moreover, I would imagine that each of us has learned something about what habeas corpus is and why it matters. (I know I have.) This makes it that much less likely that the next time around, people will be able to succeed in curtailing it. And this matters immensely: democracies are maintained by the free choices of free citizens to protect the freedoms they enjoy, and everyone who fought this has acted as free citizens should.

On the other hand, this bill is worse than the status quo ante, since it strips the detainees of habeas corpus. Habeas petitions were not “clogging” the court system: if our courts are so fragile that fewer than two hundred petitions can bring them to their knees, then we really, really need to appoint more judges. And habeas matters. It matters a lot. As a sort of requiem for this whole thing, I’m going to write what would have been my next post in the series had I not been incredibly busy for the last two days, as the last of my habeas stories.

In the comments to an earlier post, someone thought that I was using O.K. as a “poster boy” for habeas corpus. I wasn’t: I was tracking down the stories Graham used, and in O.K.’s case I tried to make it clear that he was accused of doing serious things, and that his goodness or badness seemed to me to have nothing to do with whether or not his allegations should be investigated. The case I am about to describe, however, is a poster child for habeas corpus. The detainees involved have been found innocent by the government’s own tribunals. They are asking the government to explain why they are still being detained. This is exactly what habeas corpus is all about. It is also a case that cannot be brought under the new compromise bill; and that is a disgrace.

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World’s Greatest Deliberative Body

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by Katherine

At 12:06 today the Senate voted down Bingaman’s revised amendment, 44-54. Republicans voting for: Specter, Smith, Sununu, Chafee. Democrats voting against: Bayh, Conrad, Lieberman, Ben Nelson. Not voting: Alexander, Corzine.

At 12:30 today the Senate approved the Graham-Levin-Kyl substitute amendment, 84-14. I originally assumed when I saw the count that the 14 votes were the hard core outraged-by-the-outrage crowd, since after all this substituted for an even worse amendment. I was wrong about that. If you look at the list–Baucus, Biden, Bingaman, Byrd, Dayton, Durbin, Feingold, Harkin, Kennedy, Lautenberg, Leahy, Rockefeller, Sarbanes, Specter–it’s clearly a protest vote by senators who simply would not put their names on any bill to strip habeas.

Last night I mentioned six senators as being especially engaged and trustworthy on the torture issue: Bingaman, Durbin, Feingold, Kennedy, Leahy, Levin. I said that when you didn’t really know what was going on, you could do worse than following their and their staffs’ leads. Five of them seem to have felt they could not support this amendment, even though it replaced an even worse one. The other is Levin, and I guess he felt that he had to vote for the compromise he arranged.

At 12:50 today the Senate passed S. 1042, the defense appropriations bill that all these amendments concerned, unanimously.

So. What the hell happened? And what will it mean for the people in Guantanamo?

No one seems to know. I mean that quite literally:  I don’t think there is a single person in the country who could tell you with any confidence what effect this bill will have. Marty Lederman lists just a few of the open questions here.

Most of the people who could make the best guess at what this will mean don’t want to talk about it. It’s too late to fix it now. If they point out how it could be worse, the conference commitee will make it worse. If they point out how bad it could be, the administration will use their arguments against them later on in court, when it’s arguing for the most draconian interpretation possible.

The standard cliche at this point is to talk about how making laws is like making sausages–you’ll feel a lot better if you don’t see how it actually happens. But according to my Joy of Cooking,

If sausage has the vestiges of a murky reputation in this country, it is probably because of our long-held (and usually mistaken) belief that sausage is made from "parts"–not just various internal organs but the ears, lips, or tails of animals. Most of what is available in America today, no matter what its ethnic origins, is made from nothing more than meat, fat, and spices–and the commercial sausage industry is highly regulated.

So, apparently the comparison would be unfair to sausages. People are looking for other imagery. The prize so far goes to Gita Gutierrez of the Center for Constitutional Rights, who told Newsday: "On the back of a cocktail napkin they have tossed aside protections of individual liberty that have been in existence for centuries."

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Habeas and Guantanamo: Breaking News

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All right. There are two new amendments:

Graham has proposed an amendment to his own amendment, which is co-sponsored by Carl Levin and John Kyl. Here is a PDF of it. It still cuts off habeas but it allows more judicial review than the version that Graham stuck into the appropriations bill last Friday. Bingaman has also proposed a new amendment. Here’s a PDF of that. It allows habeas, but it cuts off lawsuits challenging the conditions of confinement.

I know Graham’s new amendment is an improvement over his Friday amendment, while Bingaman’s amendment is, in an effort to garner votes, worse than his earlier amendment. I don’t really know how much better and worse in either case. Of the four cosponsors of those amendments, I trust Levin and Bingaman quite a lot and Graham (after this episode) and Kyl (as always) not at all. And Levin has stated that he prefers Bingaman’s amendment to the one he co-wrote with Graham and Kyl, but that one is still far preferable to the one that passed Friday.

The AP, Reuters, and the Washington Post have all written articles on these provisions. The Post article says the Levin/Kyl/Graham Amendment might be linked to the McCain amendment in an effort to get both of them through conference. I don’t know if that’s true, and I don’t know if it’s a good deal or a bad deal if it is true. At this point I don’t trust Graham at all, and I don’t trust McCain much. The only advice I can give is to name a few of the Congressmen in Washington who I think are the most trustworthy and dedicated on this issue: Levin, Durbin, Bingaman, Leahy, Feingold, Kennedy. Markey and I think also Murtha in the House. If you don’t know what’s going on, find out what they’re doing and ask your own reps. to do the same.

I apologize for leaving everyone hanging like this. I can’t tell you how frustrating it is to have done as much as possible to research this issue, which has such a huge effect on hundreds of people’s lives and on what kind of country the United States will be, and to not even really understand what these bills mean on the day before the Senate votes on them. I went to law school, and have very smart people who know a lot about this issue trying to explain this to me, and I still feel like  I’ve wandered into this scene. As Judge Joyce Hens Green said of Moustafa Idr’s trial, it would be funny if the stakes weren’t so horribly high.

Unfortunately I don’t think I can update this tomorrow, so hopefully some of our commenters can fill the gaps.

I should say, despite the negative tone of this post: the situation looks a lot better now than it looked Friday or last night. Thanks to everyone who linked or called their Senators.

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Closing Statement

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by Katherine

Unless the Bingaman amendment is introduced Tuesday instead of Monday, or hilzoy has something up her sleeve, I think this is the last post we are going to be able to do on this subject. It will also be the shortest.

First, I wanted to provide links to all the posts about the Graham/Bingaman Amendment in one place: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13.

[UPDATE: Also 14, 15, 16, 17.]

Second: you may be saying "you make some good points, but this is complicated and I’m not sure I completely agree." Or maybe even: "are you nuts?!!? You think I have time to read thirteen posts on this?" Well. If there is not enough time for you to even read all these posts–how in the hell is one hour on Thursday, and maybe a few more hours tomorrow, enough time for the Senate to deliberate on this bill? Why on earth is this being pushed through on an appropriations bill, with no hearings, no debate, on the strength of arguments that are (deliberately or inadvertantly) quite misleading?  When the Senators providing the margin of victory seem unaware of some key facts and of the legal implications of what they’re doing? We’re talking about habeas corpus here. We’re talking about indefinite detention under conditions that have prompted a large number of suicide attempts. We’re talking about serious charges of abuse. We’re talking about human beings, some of whom are terrorists and some of whom aren’t–some of whom even the pathetic CSRT process has determined are innocent. Could we maybe wait a few weeks, hold a hearing or two, have some real negotiations?

Third: if you agree, if not with our conclusions, than at least that this is maybe important and complicated enough that we could stand to wait a few weeks, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042. And please consider asking other people to do the same.

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The Key to the Courthouse Door, Part II

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(or, "Why the McCain Amendment is No Substitute")

(Eleventh in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

I don’t have a specific passage to quote from Graham’s speech here. Rather, I am responding to his general claim, that it is all right to take away habeas corpus from the Guantanamo detainees because of the McCain amendment.

Something that first year law students have drummed into them, but which in my experience is not at all intuitive to non-lawyers: that something is illegal doesn’t automatically mean a court can do anything about it.  There are all sorts of hoops you must jump through before a judge or jury determines what happened, and whether or not any laws have been broken, and what the remedy should be. All these terms which lawyers throw around casually, and which cause our families roll their eyes and wonder what the hell we’re talking about: Personal jurisdiction. Subject matter jurisdiction. A cause of action. Standing to sue. Ripeness. Mootness. Justiciability. A waiver of sovereign immunity, if you are suing the government. etc. etc.

Let’s not get into what those terms mean. I barely can keep track, because I stupidly didn’t take Federal Courts. Let me just reiterate: just because something is illegal doesn’t mean a court can do anything about it.

The McCain amendment is about whether torture is illegal. The Graham amendment, though the word "torture" appears nowhere in it, is highly relevant to whether a court can do anything about it.  Go back to what that Pentagon official said:

A senior Pentagon lawyer who asked not to be named said that the Graham amendment will have another consequence. The same Pentagon bill also contains a clause, sponsored by Graham and the Arizona Republican John McCain, to outlaw torture at US detention camps – a move up to now fiercely resisted by the White House. ‘If detainees can’t talk to lawyers or file cases, how will anyone ever find out if they have been abused,’ the lawyer said.

Most of the evidence of abuse at Guantanamo has emerged from lawyers’ discussions with their clients.

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The Key to the Courthouse Door, Part I

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(or, "What Habeas Corpus Is and Isn’t")

by Katherine

(Tenth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.

This post and the one following it delve more than the others into the legal questions involved. Before beginning, I should say that I am very, very far from an expert on either habeas corpus in general or the Guantanamo litigation in particular. I have talked to some people who know much more about these issues than me–they should get much of the credit for what I get right; I should get all of the blame for what I screw up.)

"For those who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into Federal court, count me out….they are not entitled to this status. They are not criminal defendants."–Senator Lindsey Graham.

Graham is correct to state that the Guantanamo detainees are not criminal defendants and do not have the rights of criminal defendants in U.S. courts. But here is what is essential to understand: no one is arguing that they are.

The Supreme Court held in HamdI v. Rumsfeld that the President had the authority to hold a U.S. citizen as an enemy combatant rather than charging him with a crime. All of the judges who disagreed with that interpretation did so only because Hamdan was a U.S. citizen. So are they going to suddenly turn around and hold that non-U.S. citizens on Guantanamo must be brought up on criminal charges or released? No. There is no possibility of that. The detainees’ lawyers are not seeking it. They know damn well that if they do, they will lose.

I don’t think Graham is genuinely confused about this point. As a JAG lawyer he must know that habeas is not synonymous with civilian criminal trials. I don’t know that he was actively trying to mislead people about it; it may only be that he thought it made good rhetoric. But whatever his intent, I think he has misled several other senators into thinking that the question is whether the Guantanamo detainees will be tried by a military trial of some sort (a court martial, a military commission, or what have you) or as civilians under U.S. criminal law.

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“Congress is going to provide oversight”

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by Katherine

(Ninth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

"Congress now is looking over the shoulder of what is going on there….

the Congress is going to watch what happens. The Congress is going to be involved, and we are going to take a stand. We are going to help straighten out this legal mess we are in….

I know what we need to fix in terms of the way we have treated prisoners. We are doing it. We are getting it right. We are making up for our past sins….

To the human rights activists out there, God bless you. You have helped us in many ways. We are going to make the statements you want us to make about treating people humanely. We are going to have standardized interrogation techniques. Congress is going to provide oversight and we are going to let the courts provide oversight."–Senator Lindsey Graham

Senator Graham may honestly believe this. It isn’t true.

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More Frivolity: Now With Human Mops!

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by hilzoy

(Eighth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

“A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison.”

A lot of the cases we have dicussed earlier involve detainees who have been found to be innocent. This one (pdf) is different: it involves a detainee (known as O.K.) who has been charged with murder for allegedly throwing the grenade Graham mentioned. You might not think that it’s a mitigating factor that he was with his family in a compound when it came under attack, and that he seems to have thrown the grenade in an attempt to defend himself. (He was the only survivor of the attack on the compound.) What, you might ask, was he doing at what seems to have been an al Qaeda compound to begin with? The answer is that he was fifteen years old at the time, and that’s where his family was living.

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Family Videos

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by hilzoy

(Seventh in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

Having checked out the medical malpractice motions that Lindsey Graham referred to, and discovered that they were a lot more serious than he let on, I decided to investigate another of the motions he cites as examples of frivolous claims by detainees. I purposely picked the one that seemed the most frivolous to me, namely this:

“Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.“

What, I wondered, could possibly explain a motion like this? How could a prisoner’s access to DVDs possibly be important? After a certain amount of wrestling with my brand new PACER account, I found the motion in question (pdf). And this is the story:

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Competent Tribunals

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by Katherine

(sixth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill # S. 1042.  Senator Graham’s full floor speech is here.)

"What we have done at Guantanamo is we have set up a procedure that will allow every suspected enemy combatant to be brought to Guantanamo Bay and given due process in terms of whether they should be classified as an enemy combatant….

What is going on at Guantanamo Bay is called the Combat Status Review Tribunal, which is the Geneva Conventions protections on steroids. It is a process of determining who an enemy combatant is that not only applies with the Geneva Conventions and then some, it also is being modeled based on the O’Connor opinion in Hamdi, a Supreme Court case, where she suggested that Army regulation 190-8, sections 1 through 6, of 1997, would be the proper guide in detaining people as enemy prisoners, enemy combatants. That regulation is “Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees.” We have taken her guidance. We have the Army regulation 190-8, and we have created an enemy combat status review that goes well beyond the Geneva Conventions requirements to detain someone as an enemy combatant."–Senator Lindsey Graham

How do these CSRTs, which Senator Graham describes as "the Geneva Convention Protections on Steroids" and which the administration argues are enough to justify detention until the end of a war that may never end, actually work in practice?

Let’s look at some examples.

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Caught On The Battlefield

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by Katherine

(fifth in a series arguing against the Graham Amendment/for the Bingaman Amendment. When you call your senators, tell them that you’re asking to vote for the Bingaman Amendment, S. AMDT 2517to bill # S. 1042.)

“not as criminal defendants but as enemy combatants, people detained on the battlefield”

“Guantanamo Bay is a place we have designated to take people off the battlefield and hold them”

“an enemy combatant–someone caught on the battlefield, engaged in hostilities against this country”

“These are people caught on the battlefield as the Nazis were caught on the battlefield.”

–Senator Lindsey Graham.

Were they all really caught on the battlefield? That depends on what the definition of “battlefield” is.

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Medical Malpractice 3

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by hilzoy (This is the fourth in a series of posts addressing specific arguments and statements that Senator Lindsey Graham made in the floor speech in support of his amendment ending habeas for Guantanamo detainees. A Word doc of Graham’s speech is here.) Two medical malpractice claims have come out of this…. Never in the … Read more

Medical Malpractice 2

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by hilzoy and Katherine (This is the third in a series of posts addressing specific arguments and statements that Senator Lindsey Graham made in the floor speech in support of his amendment ending habeas for Guantanamo detainees. A Word doc of Graham’s speech is here.) Two medical malpractice claims have come out of this…. Never … Read more

Medical Malpractice

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by hilzoy and Katherine

(This is the second in a series of posts addressing specific arguments and statements that Senator Lindsey Graham made in the floor speech in support of his amendment ending habeas for Guantanamo detainees.)

“Can you imagine Nazi prisoners suing us about their reading material? Two medical malpractice claims have come out of this…. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care”—Senator Lindsey Graham.

Senator Graham seems to imply here that these are garden variety, probably frivolous, malpractice claims.

I don’t know what legal claims or cases he’s referring to, so I can’t speak to that—there may be frivolous claims. If so I doubt the courts will have much trouble throwing them out.

But there may have been real reasons for detainees at Guantanamo to complain about their medical care to the courts. There have been credible reports of medical care for severe injuries being withheld as an interrogation technique, and of doctors and psychologists assisting with abusive interrogations.

Jane Mayer has reported in the New Yorker that “a number of medical and scientific personnel working at Guantánamo—including psychologists and psychiatrists—are not providing care for detainees. Rather, these ‘non-treating’ professionals have been using their skills to ‘assist the interrogators.’”

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About “Them”

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by hilzoy, with Katherine

(hi everybody. This is the first in a series of posts that reply directly to the arguments, assertions, and claims that Senator Lindsey Graham has made in support of his amendment suspending habeas corpus for noncitizens at Guantanamo, which I’ll be working on with hilzoy. –K)

(I deserve no credit on this one. Also, about Graham’s speech: I’ve transformed it into a Word doc; it’s here, for your amusement and delectation. — h.)

"How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct."—Sen. Lindsey Graham

There are two problems with this statement. One is the crazily-wrong assumption that people’s legal status has no effect at all on whether they’re abused. More on that later.

But let’s say it’s not about us at all, and only about them. What do we actually know about them?

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The Evil Amendment: Bad News; Still Hope

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by hilzoy The Senate passed a modified version of the amendment I wrote about last night. (Roll call here.) The modified version (text here (pdf)) still strips detainees of any right to a petition of habeas corpus, but allows the DC Circuit Court of Appeals to hear claims from them. The problem, though, is that … Read more

Jordan

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by hilzoy WaPo: “Three nearly simultaneous bomb blasts tore through hotels here Wednesday night, killing more than 50 people, wounding at least 110 and sending fear and panic through the streets of the normally tranquil city. Jordanian authorities immediately shut down many of the capital’s main roads and deployed dozens of ambulances, police cars and … Read more

Stop This Amendment.

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by hilzoy From the AP: “A Senate Republican wants to bar suspected foreign terrorists held at the U.S. prison in Guantanamo Bay, Cuba, from challenging their detentions in U.S. courts, a proposal that is drawing protest from human rights groups. Sen. Lindsey Graham, R-S.C., said he also faces some resistance from Senate colleagues and the … Read more

Taking Ethics Seriously

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by hilzoy Via AmericaBlog, from today’s Press Conference“ “Q Yes, sir. Back in October of 2000, this is what you said — PRESIDENT BUSH: Okay. Whew. Q “We will ask not only what is legal, but what is right; not what the lawyers allow, but what the public deserves.” In the CIA leak case, has … Read more