Worse then negotiating with themselves...

...they're pointlessly negotiating with Lindsey ("Milkaholic") Graham. He may provide "cover" for the administration's desire to close the facility at Guantanamo Bay, but he doesn't provide any...ya know...votes for actually doing it.

For fuck's sake, Khalid Sheik Mohammed should already be on trial, in Federal District Court in Manhattan.

Obama: Reverent constitutionalist or benevolent despot?

I really don't have anything to add to Adam Serwer's analysis of President Obama's speech. I do think the speech was a strong condemnation of the last administration's "ad hoc approach" and, specifically the use of torture, which, he was clear, is neither morally right or efficacious. Clearly, you won't hear from Obama that "the Constitution is not a suicide pact." He is saying that he reveres the documents on which this country was founded and does not find our traditions "quaint" in the face of modern terrorism. He takes the rule of law seriously.

But he's also saying, "Look, I've been left with a mess and we are facing real threats. Trust me to find a way to solve this. We're consumed with solving this, in fact" But he doesn't say how he'll do that. And there's the rub.

As Serwer concludes, Obama may be more dangerous than George W. Bush because we trust the former. But, for now, I'll go with the thoughtful constitutional scholar rather than the fear mongerers.

Closing Gitmo

There are still many questions that the Obama administration will have to answer -- specifically, what will replace the egregious military commissions -- but this is a very, very good start.

WASHINGTON – The new Obama administration circulated a draft executive order Wednesday that calls for closing the controversial detention center at Guantanamo Bay within a year and halting any war crimes trials in the meantime.

Closing the facility in Cuba "would further the national security and foreign policy interests of the United States and the interests of justice," read the draft prepared for the new president's signature.

While some of the detainees currently held at Guantanamo would be released, others would be transferred elsewhere and later put on trial under terms to be determined.

It was not known when Obama intended to issue the order. He has been a longtime critic of the Bush administration's decision to maintain the detention facility, which was opened after the Sept. 11, 2001, terrorist attacks.

Because of images like this one, it is very important that the order gets beyond "draft" quickly.

Hardcore

"The worst of the worst," according to Dick Cheney.

The tale Mr. Bismullah’s lawyers assembled was one of complex tribal loyalties and evident confusion by his American captors. Sher Mohammed Akhundzada, a Karzai ally and member of the Afghan Senate, described in a sworn statement that he had known Mr. Bismullah and his family for years. When they fought the Taliban, he said, “Haji Bismullah was with us.”

After the fall of the Taliban, Mr. Bismullah became an official of the pro-American regional government in Helmand Province, where tribal loyalties had brought assassinations and other brutal infighting, according to sworn statements. His job as chief of transportation was coveted by a rival clan, whose members had held the position under the Taliban. Mr. Akhundzada said the rival clan members had demanded the job, and when they did not get it, they told American forces that Mr. Bismullah was in league with the Taliban.

Though the accusation worked, the rival clan’s candidate was not appointed transportation chief. It was then that Mr. Bismullah’s car was seen being driven by one of his accusers, who, according to Karzai officials, were themselves tied to the Taliban.

At Guantánamo, Mr. Bismullah insisted he was innocent. He told military officials to contact his brother to vouch for him. The officials concluded that the brother was “not reasonably available” as a witness. At the time the brother, Haji Mohammad Wali, was the chief spokesman for a pro-American provisional governor who regularly gave news conferences, legal filings say.

The "fog or war" should have cleared years ago.

Rebooting our reputation

Although I applaud Obama's decision to include his middle name when he takes the oath of office next month -- if for no other reason that it will further drive wingnuttia to demented despair -- I don't think that will have much effect if he listens to the handwringers who think legalizing Guantanamo is a good idea.

But even as President-elect Obama repeats his oft-made promise to shutter the prison that has so besmirched the nation's reputation, some legal experts, and not just those on the right, are talking about giving him the right to open a new Gitmo here at home. An extraordinary debate is under way about whether Congress should expressly authorize the new president to do what the outgoing president did on his own claimed authority: imprison alleged terrorists without charge or trial.

It may surprise some to learn that in the waning days of the Bush administration, there is an emerging narrative in Washington think-tank circles -- a narrative that shows signs of congealing into "bipartisan consensus" -- that Congress should enact a law that expressly permits such detention. What underlies the consensus is the theory that our criminal justice system is unequal to the task of detaining terrorists in a dangerous world. The impetus for this discussion is the likelihood that an Obama administration will, in fact, move to close Guantánamo, and its urgency is supplied by the claim that among the 250 prisoners still imprisoned there are many who are too dangerous to release, but too difficult to prosecute. Accordingly, the argument goes, unless Congress devises a new legal framework for detaining terrorism suspects for preventive purposes, the closing of Guantánamo means that hordes of terrorists will be released to carry on their war against America.

Proponents of a new detention-without-trial regime contend that there are a sizable number of detainees at Guantánamo whose release would pose an unacceptable risk, but whose prosecution in our traditional criminal justice system would face insurmountable obstacles. For example, Matthew Waxman, who held senior positions in both the State and Defense Departments under President Bush and now teaches at Columbia Law School, states that "criminal prosecutions [of Guantánamo detainees] should be carried out whenever possible," but insists that "the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods," and furthermore, that "the evidence may not be admissible under U.S. criminal law rules." Benjamin Wittes, a Brookings Institution scholar and author of "Law and the Long War," which advocates a new detention regime, is more blunt in explaining why some terrorism suspects cannot be criminally prosecuted: "because they have not committed crimes cognizable under American law, because evidence against them was collected in the rough and tumble of warfare and would be excluded under various evidentiary rules, or because the evidence is tainted by coercion." For those reasons, Wittes contends, Congress must move quickly to enact a law that would authorize the long-term detention without trial of suspected terrorists, following some kind of judicial process to assess the dangerousness of the detainee.

[...]

But perhaps the most salient flaw in the current crop of detention proposals is that they are solutions in search of a problem. The class of people who cannot be prosecuted but are too dangerous to let go is either very small or nonexistent. To the extent that it exists at all, it is a class that was created by the administration's torture policies. To build a system of detention without trial in order to accommodate those torture policies would be a legal and moral catastrophe, a mistake of historic proportions.

How an Obama administration chooses to tackle these issues will determine, in large part, the legal legacy of the last eight years. Even the clearest renunciation of torture will be an empty gesture if we simultaneously construct a new detention regime meant to permit prosecutors to rely on torture's fruits. That our justice system prohibits the imprisonment of human beings on the basis of evidence that was beaten, burned, frozen or drowned out of them is evidence of its strength, not its weakness. It is why we call it a "justice system" in the first place.

It is possible, though unlikely, that one consequence of the Bush administration's criminal embrace of torture is that the United States will be compelled to release an individual who might otherwise have been prosecutable for terrorism. Were this to occur, it would not be the first time that our commitment to the rule of law has required that we let a potentially dangerous person walk free. We can accept this risk as an inherent cost of freedom, or we can diminish that freedom in a misguided -- and shortsighted -- attempt to reduce that risk. The choice we make will not determine the nation's survival. It will, however, shape its identity.

Read, as they say, the whole thing.

Wild Gitmo Ride

Under the boardwalk...

It looks at first like any other shuttered storefront near the boardwalk: some garish lettering and a cartoonish invitation to a delight or a scam — in this case there’s SpongeBob SquarePants saying, “It don’t Gitmo better!”

If you climb up a few cinderblock steps to the small window, you can look through the bars at a scene meant to invoke a Guantánamo Bay interrogation. A lifesize figure in a dark sweatshirt, the hood drawn low over his face, leans over another figure in an orange jumpsuit, his face covered by a towel and his body strapped down on a tilted surface.

Feed a dollar into a slot, the lights go on, and Black Hood pours water up Orange Jumpsuit’s nose and mouth while Orange Jumpsuit convulses against his restraints for 15 seconds. O.K., kids, who wants more cotton candy!

In interrupting a day at the beach with scenes of the United States government’s rougher practices, Mr. Powers is being deliberately provocative. “What’s more obscene,” he asks, “the official position that waterboarding is not torture, or our official position that it’s a thrill ride?”

Some people are disappointed to learn that they're animatronic figures.

"This is not America"

Potemkin trials, Potemkin justice.

GUANTÁNAMO BAY, Cuba — On the surface, the proceedings unfolding inside a makeshift courthouse on a hill here resemble an American trial. A judge wearing a black robe presides. There is a public gallery and a witness stand. Prosecutors present witnesses, and defense lawyers cross-examine them. Objections are made and ruled upon.

But behind the judicial routine at the first trial for a Guantánamo detainee lies a parallel universe of law and lawyers. Secret evidence held in red folders is not revealed in open court. The gallery is mostly empty, because there are no members of the public. In what would be the jury box, every occupant wears a military uniform.

[...]

The chief Guantánamo prosecutor, Col. Lawrence J. Morris of the Army, said this first Guantánamo tribunal was “the most just war crimes trial that anybody has ever seen.”

Matt Pollard, a legal adviser for Amnesty International who is an observer here, sees it differently. He said he was struck by a sense that the proceedings were more of a replica of a trial than a real one.

“We are within a frame of a beautiful picture,” created by the Pentagon, Mr. Pollard said. “When you’re inside that frame, everything looks nice.”

[...]

With few seats designated for reporters in the courtroom, the Pentagon set up closed-circuit televisions at a news media center in an old hangar. During some critical moments in the first week of testimony, the courtroom camera was pointed away from witnesses’ faces and the evidence, including documents and videotapes.

When a reporter noted that in America reporters were permitted to see witnesses and evidence, a spokeswoman for the Office of Military Commissions at the Pentagon, Maj. Gail Crawford, responded, “This is not America.”

Truer words were never said.

Keep in mind that Hamdan's boss, Abdellah Tabarak, was released from Guantanamo in 2004, and now walks the streets of Morocco, a free man.

The cowardice of Guantanamo Bay

Yes, cowardice. George W. Bush's fear of looking less than resolute has kept the prison at Guantanamo Bay open for this long, in which prisoners are warehoused rather than tried. It, like the sucking chest wound we call a federal budget, is the legacy he leaves us.

KABUL, Afghanistan — Abdul Razzaq Hekmati was regarded here as a war hero, famous for his resistance to the Russian occupation in the 1980s and later for a daring prison break he organized for three opponents of the Taliban government in 1999.

But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan when, senior Afghan officials here contend, he was falsely accused by his enemies of being a Taliban commander himself. For the next five years he was held at the American military base in Guantánamo Bay, Cuba, where he died of cancer on Dec. 30.

The fate of Mr. Hekmati, the first detainee to die of natural causes at Guantánamo, who fruitlessly recounted his story several times to American officials, demonstrates the enduring problems of the tribunals at Guantánamo, say Afghan officials and others who knew him.

Afghan officials, and some Americans, complain that detainees are effectively thwarted from calling witnesses in their defense, and that the Afghan government is never consulted on the detention cases, even when it may be able to help. Mr. Hekmati’s case, officials who knew him said, shows that sometimes the Americans do not seem to know whom they are holding. Meanwhile, detainees wait for years with no resolution to their cases.

In response to queries, a spokeswoman for the Pentagon, Cynthia O. Smith, said the military tribunals at Guantánamo contained “significant process and protections,” including the right to call witnesses.

That is of course, to use a military term, bullshit, as Hekmati's case illustrates.

In a report in February 2006 based on an analysis of documents released by the Pentagon, researchers at Seton Hall University School of Law, in Newark, concluded that no outside witnesses had ever been called to appear at Guantánamo. Lt. Col. Stephen E. Abraham, a former United States intelligence officer who had worked on the tribunals, stepped forward last June to criticize the tribunals.

In a submission to the Supreme Court, he condemned them for relying on generalized evidence that would have been dismissed by any competent court, and as being devised to rubber-stamp the administration’s assertion that the detainees had been correctly designated “enemy combatants” when they were captured and that they could be held indefinitely.

In a second submission, to the United States Court of Appeals for the District of Columbia Circuit in November, Colonel Abraham explained that he was “not aware of any realistic attempts” to “identify or even attempt to bring before the tribunal witnesses or their statements,” and concluded that the whole process “was designed to conduct tribunals without witnesses other than the accused detainee.”

Deciding what to do with the inmates at Guantanamo is going to be one of the first mistakes the new president should undo. Unless it's Romney, of course.

Hilzoy has more.