Get a load of this spin! From Reynolds Holding at TIME Online:How to Botch Another Terror Case
How many times does the Bush Administration have to bungle a legal challenge to its detention of suspected terrorists — and, thanks to its own deception, leave yet another shady suspect looking sympathetic — before it gets its act in order?I nominate this opening paragraph for a "Deceptive Frame Of The Month" award, based on the fact that this case is not entirely -- or even mostly -- about the bungling of a legal challenge. But who cares? Not Reynolds Holding -- clearly. I can't even count the rotations!
A week after two judges halted detainee hearings at Guantanamo Bay, Cuba, over a statutory glitch, a federal appeals court in Richmond, Va., ordered Al Saleh Kahlah al-Marri released from military detention. As a civilian in the United States on a student visa, al-Marri has the right to a full and fair hearing in court and cannot be held indefinitely as an enemy combatant in the war on terror, the court ruled Monday.... if he ever gets out at all ...
Al-Marri won't get out of the military brig in South Carolina immediately,
but the Administration has to decide soon whether to try him in criminal court, hold him temporarily as a grand jury witness against other suspected terrorists, deport him — or let him go.And there's the rub. Who defines "soon"? "Soon" to a geologist means "sometime in the next ten or twenty thousand years". To those guys, the Rockies are "young mountains".
And there's your answer: they can hold him forever as long as they keep promising to do something else "soon". But first they can spend years appealing the decision.
As for letting him go, Reynolds Holding presumes to know what everybody thinks; always a bad sign:
Probably no one outside of al-Marri's wife and kids in Peoria, Illinois, prefers the last option.Why not? Because he's been accused of something?
In a word, yes!
A citizen of Qatar, al-Marri allegedly trained at an al-Qaeda camp in Afghanistan, palled around with Osama Bin Laden and came to the U.S. on Sept. 10, 2001 as a "sleeper agent," a computer hacker bent on disrupting the American financial system. He was arrested at home three months later as a material witness in the investigation of the Sept. 11 attacks. Al-Marri denies any connection with al-Qaeda or terrorism, but constitutional issues aside, we might all rest easier if the military could just keep him out of circulation for awhile.Why should we toss constitutional issues aside? That's the heart of this case -- the crux of the problem.
What? Did you think the big issue was keeping al-Marri out of circulation for a while?
They've kept him out of circulation for five years already! Is it awhile yet? And if not, when will it be awhile? Are people entitled to a hearing? A trial? Or should the military be allowed to keep people incarcerated forever just because of an allegation?
After all, that's what it has been allowed to do with people like Yaser Esam Hamdi, an American citizen captured while fighting for the Taliban in Afghanistan (he was eventually deported to Saudi Arabia in exchange for renouncing his citizenship). Al-Marri isn't even a citizen, and he was caught allegedly pursuing terrorism within the U.S. Isn't he exactly the kind of guy that the Administration should be allowed to declare an enemy combatant and hold in a military brig?Listen: What's in an accusation? And if the accusation is serious enough, does that mean the accused is guilty without a trial?
These are not rhetorical questions: the answers we produce now may guide our hand for generations. And it might matter quite a bit.
For instance, the president has been accused of foreknowledge of 9/11. Isn't that a fairly serious accusation? And isn't he exactly the kind of guy that We The People should be allowed to declare an enemy combatant and hold in a military brig?
I don't think so: I think he should have a fair trial before he's sent away for the rest of his miserable life ... but then again, there's so much more evidence against Bush than there is against Al-Marri that perhaps a trial is not even necessary!
But the real question is this: Should the administration be allowed to declare somebody an enemy combatant -- without hearing, without a trial, without providing any evidence whatsoever -- and then hold that person in a military brig forever without a hearing, without a trial, without presenting any evidence?
Reynolds Holding says:
This is not an easy question.But that's not true. Not even close. It's as easy a question as there is in law or politics. It boils down to "Are we or are we not innocent until proven guilty?"
If we live under a rule of law, there's due process -- not indefinite detention and torture -- for all defendants, in all cases, no matter what crime the defendant is accused of committing.
But that didn't even come up in this case. They chose to split another hair instead. Or as Reynolds Holder rotates it,
Fortunately, two of the three appeals-court judges were clear-headed enough to see a distinction.You don't need to see any distinctions on this case unless you want to spin it. And unfortunately for the slight little matter of Constitutional law, this story contains several built-in spin-points.
Hamdi and others captured while actively fighting the U.S. on a foreign battlefield, or shortly after leaving the battlefield, naturally fit under the laws of war and can be held, with minimal rights, by the military so that they do not return to the enemy to fight again.Naturally? Maybe so. But in more temperate times, one might be excused for asking the following question:
Why is it that somebody "actively fighting the U.S. on a foreign battlefield" is worthy of a lifetime of detention and torture, while somebody actively fighting foreigners in their own countries is considered to be engaged in a noble cause and serving his country (and therefore worthy of a lifetime of neglect at Walter Reed)?
Oh, right! It's because Americans are better than anybody else in the entire world, and can do no wrong! Sorry about that; it just slipped my mind for a moment.
In the actual court case,
The Bush Administration argued that al-Marri was also an enemy combatant, committed to fighting on behalf of al-Qaeda, but the court didn't see it that way. It ruled that al-Marri, no matter how dangerous, is just a civilian. And any civilian in the U.S. legally has the right when arrested to hear the charges against him, to be tried by a jury and to receive all the other benefits of due process under the Constitution. As the three-judge panel said in its majority opinion, to allow the President "to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the Constitution — and the country."Well of course it would, especially when you consider that there is no requirement for the President to substantiate his claim. All he has to do is call you an "enemy combatant"? He can throw you in prison forever on the strength of that unsubstantiated claim? How would you feel about it if it happened to you?
It's a question Reynolds Holding appears to have asked himself; he and his editors are obviously in agreement on it. Thus they feed us relentless spin, even in the face of overwhelming evidence that when it comes to this presidency, and especially the GWOT, all is not what it seems. So we get statements like this one:
Though compelling, the panel's conclusion is not obvious,Oh yes it is, unless you're ignorant of civilized law ... or unless you've been brainwashed!
and the full court to which the Administration has appealed may disagree (as might the U.S. Supreme Court, if it ever hears the case).Of course, the full court, or possibly the Supreme Court, may disagree -- and they may do so for motives entirely unrelated to the merits of the case. No? Bah! They do that all the time! What would make this any different?
The Administration, then, can't necessarily be blamed for trying to treat al-Marri as an enemy combatant so that it could detain him indefinitely and prevent him from rejoining the enemy during the war on terror, right?Wrong! They certainly could be blamed, but not by a "journalist" who is busy polishing their jackboots with his tongue! Even if that was what they were doing.
Except that's apparently not what the Administration was up to.Oops! Wrong again!!
As Marty Lederman, a visiting professor at Georgetown University Law School, points out, al-Marri was already on ice. He was being held on credit-card fraud and other criminal charges for 16 months before the president abruptly designated him an enemy combatant in June 2003 and had him moved to a military prison. And the move came shortly after a court scheduled a hearing on al-Marri's motion to suppress evidence allegedly obtained through torture.But how can that be? We don't torture! And we've got all sorts of shifty new legal definitions to prove it.
In a long footnote to its opinion, the appeals court suggests what was really going on. As the court explains, al-Marri claimed that the government suddenly named him an enemy combatant merely because it wanted to interrogate him in a way that would have violated the rules of criminal prosecution. Referring to al-Marri's claim, the court says, "we trust that this is not so, for such a stratagem" would violate a Supreme Court ruling that prohibits indefinite detention for the purpose of interrogation.Sad but true, the justices of this court -- like many other still-deluded citizens -- "trust" their naive view of this clearly criminal administration more than they "trust" the evidence -- even when there's no alternative explanation, as in this case:
"We note, however, that not only has the Government offered no other explanation for abandoning al-Marri's prosecution, it has even propounded an affidavit in support of al-Marri's continued military detention stating that he 'possesses information of high intelligence value.'"That's pretty clear, isn't it? Or is it? Why should the court "trust" that what they have been told is false?
Especially when the implications of that evidence is clear, even to Reynolds Holder:
So, contrary to Supreme Court precedent as well as its own legal arguments before the appeals court, the Administration threw al-Marri in the brig just because it wanted to squeeze him for more information.Or maybe not. The problem with this explanation is that our authorities know "enhanced interrogation techniques" don't provide reliable intelligence. So we must look elsewhere for an explanation.
Is this just the latest in a long string of GWOT-related government lies, parroted without question by organs of state propaganda? Unfortunately, given the track records of the administration and its lapdog media, we cannot avoid asking this question, which otherwise might seem quite loony. But there's been too much lying, and now there's no reason not to question everything. You just never know.
This sort of deceptive behavior seems a recurring flaw in the Administration's anti-terrorism efforts.Recurring flaw? Heck, no, that's not a flaw! It's the artist's signature! It's the modus operandi!
The current prosecution of suspected terrorist and U.S. citizen Jose Padilla, for example, almost collapsed because of Padilla's claim that his guards' abuse made him incompetent to stand trial; as with al-Marri, the government has changed its legal approach against Padilla, initially branding him an enemy combatant and then, when it seemed that it might lose its case before the Supreme Court, deciding to charge him criminally.These are all examples (and I could provide many more) of the administration lurching from one ludicrous lie to another, in an attempt to legitimize an illegitimate enterprise! The phony "terror war" needs a continuous supply of phony "terrorists" so the government can provide phony "protection" which they use to "justify" becoming more and more repressive!
It's all very clear, and it has been clear (to some of us at least) since about noon on the eleventh of September, 2001. But unfortunately for all of us, journalists who say things like this get published nowhere.
On the other hand, even if you write for a state propaganda organ like TIME, you can still talk about the technicalities:
Lederman says the improper reason for declaring al-Marri an enemy combatant will probably doom the government's appeal in the case.And rightly so. But that's scary, too. Because the appeal should be doomed even without the improper reason. If opponents of the Bush administration's new approach, "indefinite incarceration without hearing or evidence", want to make their feelings known, now would be as good a time as any.
Thinking of the assertion that the appeal is doomed, Reynolds Holder concludes with the following very confused paragraph:
Whether or not that's true, the President seems once again to have jeopardized his "war on terror" with an inflated notion of his own power.Oops! Whether or not that's true is highly debatable.
I would phrase it differently: Bush is using the "war on terror" to justify an inflation of his own power. He hit a little speed bump the other day, but the mission is still on target.
I find it interesting to speculate on how Reynolds Holding and his editors at TIME would approach this subject if they were more familiar with the history of totalitarian states -- the USSR, for example.
He might have said something about how the right of habeas corpus has been a basic part of all western justice systems for 900 years, about how we don't have that protection anymore, and about how the Congress hasn't shown any sign of trying to get it back.
He might have mentioned that of the nearly 400 people being detained at Gitmo, only a handful have been charged, and -- even though the "rules of evidence" have been "relaxed" -- the government doesn't have enough evidence against them to charge more than another dozen or so.
He might have mentioned that many of the people there were detained because they were sold into captivity. And how even though they've never been charged with any crime -- much less convicted! -- they may very well stay incarcerated for the rest of their lives! He might even have mentioned some of the people who are still being held there, despite having been told they're free to leave!
In short, Reynolds Holder might have made a bit of a difference.
But then again, a little knowledge is a dangerous thing. So why should he share it with his readers?