The Washington Post reports:
U.S. authorities have long considered Mohammed al-Qahtani one of the most dangerous alleged terrorists in U.S. custody, a man who could have been the 20th hijacker in the Sept. 11, 2001, plot if he had not been denied entry into the country.
But yesterday, amid concerns about using information obtained during abusive military interrogations, a top Pentagon official removed Qahtani from the military commission case meant to bring justice to those behind the vast Sept. 11 conspiracy. . . .
Prosecutors reserve the right to charge Qahtani again, and the military says it can hold him without trial for the duration of the counterterrorism wars. But his defense lawyers and officials familiar with the case say it is unlikely that Qahtani will face new charges because he was subjected to aggressive Defense Department interrogation techniques -- such as intimidation by dogs, hooding, nudity, long-term isolation and stress positions.
Those techniques were later rescinded because of concerns about their legality. In 2005, an official military investigation concluded that Qahtani's interrogation regimen amounted to abuse.
Officials close to the case said Crawford's office was reluctant to sanction the charges against Qahtani because prosecutors had little evidence against him outside of his own coerced confessions, a point that most certainly would have become a central issue at trial.
The Post story also contains this little tidbit: Former Defense Department official Charles "Cully" Stimson (the subject of these posts) is now at the Heritage Foundation.
Yeah, life in prison in lieu of a trial makes me feel so much better. :-P
I'm not terribly interested in seeing him walk -- I just want the chuckleheads to give him a fair trial.
Interesting btw that Qahtani is the focus of Philippe Sands' Torture Team, which we heard a good bit about last month &which has now been published.
If he had been a superior officer or part of the chain of command of the 19 hijackers, like KSM, bin al Shib, al Baluchi, or al Hawsawi (the other high valued prisoners whose charges were approved) then he could be charged as a participant in the attack. However, as a low level soldier who missed out in the attack because he failed to cross lines, he is not guilty of any military offense. He can still be held as an enemy combatant, but he is not subject to charges as a war criminal.
More generally, the military courts have to sort out some sloppy charging that has been done in cases like Khadr. The charges confuse elements of military law and other elements of civilian law that do not apply to soldiers. The military judges have shown themselves to be quite capable and will certainly sort this stuff out at trial.
...which is, of course, forever.
Well, we have no idea if this torture stuff worked or not -- that depends on what the guy said after being tortured. I can easily imaging that torturing the guy, getting the information, holding him for a while and then releasing him to be more in the US interests than charging him in some quasi-judicial proceedings in order to hold him in jail for a while. Perhaps he knew about enough immediate terrorist plans, and that information was more valuable tha n "giving him a fair trial". But I can't really buy it.
The real problem for me is that I lost all trust in the decision-making of the US in this regard. In other words, I can also imagine that their policy was to torture everyone captured. We definitely know that the political echelon interfered with lower echelon operations for internal political reasons.
My guess is that, like me, each of us will interpret this depending on the amount of trust we have in the antecedent decision-making (or lack thereof).
At least someone in the chain of command is sane. At least Mohammed al-Qahtani won't be set free to kill again. At least not unless Barack Hussein Obama becomes President Hussein.
Link
Is this a new term? Long War, GWOT, WWIV I've seen before, but not "counterterrorism wars." I notice that it is plural now as well. Should we just start referring to it as the WWMN (War With Many Names)? Maybe not knowing what to call this conflict is a minor point but the disagreement and indecision over it fills me with foreboding. After all, "if you do not know your enemies nor yourself, you will be imperiled in every single battle."
Thank you, Hollywood.
That would be why one of their first priorities was setting up military commissions, then?
Viewed from the perspective of international and military law, al-Qahtani is innocent of criminal charges under the facts alleged.
But why would we view it that way? Under the criminal law of the U.S., on the facts alleged, Qahtani would be guilty.
And I should note I spoke too hastily above -- the articles about Qahtani suggest that the *only* evidence we have against him is his own confessions obtained via torture &duress.
I don't quite see how we would've picked him up, that being the case, so there must be some other evidence -- itself possibly obtained illegally. But his guilt isn't as evident as KSM's, for instance.
George, please don't confuse Yoo's memos with the actual law regarding torture.
Stress positions -- like forced standing, a Stalin-era torture that its victims described as "hardly bearable."
Sleep deprivation -- a classic form of torture.
Actually, there isn't. Can you please point to any justification in law where torture of abusive treatment is justified by the ends sought?
Didn't think so.
The enthusiasm for imitating the Gestapo and KGB that one finds at this blog is really illuminating -- it becomes so much easier to understand the Nazi and Communist regimes.
I'm guessing the NVA would claim they thought McCain had actionable intelligence about a "perceived threat", especially if they knew those were the magic words for a get out of torture free card.
I seem to recall this idiot from before. Oh yes...
The douche bag who didn't think detainees should have lawyers.
People who can't find legal jobs any more wind up at Heritage.
Let's hope that they already have John Yoo's office picked out for him.
This is my point exactly (as you may recall from similar exchanges here &at Balkinization).
Al-Qaeda members are no more proper subjects of military commissions, etc. than was Timothy McVeigh, or than would be IRA members who carried out terrorist acts against Americans.
If KSM et al. had been debriefed and then placed in civilian custody and indicted, they would very likely have been executed by now.
*But* you got to keep all your fingernails! No harm, no foul!
Well, not for Napoleon...
The real point is that six years is a very long time to go without determining any of the most fundamental questions about 9/11 and the continuing war in Afghanistan. However, following rules of proper judicial behavior carefully taught in law school, every previous case has been resolved on narrow and specific grounds that avoid addressing any of these fundamental questions.
You cannot blame the administration for this. They took a position. I think they were wrong in one direction (that captured enemy soldiers are POWs). You think they are wrong in the entirely opposite direction (captured enemy are civilians who can only be tried in civilian courts). The responsibility for choosing one of these three positions, or crafting some other position, falls to the Article III branch. They have not met this responsibility, but they have done so according to rules that every American law school claims to be proper judicial conduct. Until the courts clearly say otherwise, you, me, and Bush are all entitled to our own opinions, and nobody can objectively say who is right or wrong.
I'm sympathetic to the idea that the fight against terrorism might require an alternative to the normal criminal justice system. But it needs to be a system of some kind, with rules that provide a reasonable assurance of fairness. It's fundamentally unamerican to allow the government to simply grab people and hold them as long as they feel like it.
This sounds like a great theme for an updated version of Rip Van Winkle...
Actually, in the screwed up system that the administration has dreamed up (whom I do blame btw. It is hardly fair to say the courts should decide how to deal with the detainees, when the administration has done everything in its power to keep these cases away from the courts), it really doesn't matter whether the trial is held or not. Because even if the defendant is found not guilty on all charges the government still claims he can be held indefinately as an enemy combatant.
Anyway, all three (two?) of the candidates have vowed to close Guantanmo and bring all the little jihadi darlings to the US so that they can receive fair trials under Clinton-appointed judges who give $750 fines for collaboration with Hezb'Allah by FBI employees, so if the poor dears can just hang on until January, they'll be fine.
The point of the military commissions is so that, upon conviction, the government can seek the death penalty and execute them. Without a conviction, you can't have an execution.
Anti-capital punishment types tend to argue that life without parole is not as serious as execution. Thus, even if he is never released, having the charges dropped was definitely a good thing (for him).
I'll agree with you on the broader conclusion that 6 years is too long for this limbo to continue. Don't forget how the administration's litigation positions have contributed to keeping the fog in place ...
The Qaeda/Taliban argument seems wrong to me -- sponsorship of a terrorist group does not make them your soldiers -- but it looks like an arguable point, at least. Better than "unlawful enemy combatant" mumbo-jumbo.
I was referring to some of the commenters on this site. Not what the interrogation methods or mistreatment that might have actually occurred with U.S. government sanction.
Many of the regular posters here think the only problem with the interrogation methods is that we didn't go far enough. Apparently, you don't consider it torture unless there is physical maiming.
On 9/10 the army of the government controlling 90% of Afghanistan and providing 100% of government services in that country consisted of (Jane's estimate) 45,000 soldiers including 10,000 Pakistan nationals and around 1,000 soldiers trained by al Qaeda and attached to Taliban command. The US estimates that al Qaeda trained 18,000 soliders in total, but the exact status of the other 17,000 has not been specified. Meanwhile a unit of fewer than 30 people were conducting "the planes operation" which some would call terrorism, but I prefer more objectively (because terrorism is not defined in international law) to refer to as "piracy" and "mass murder". Nineteen members of the unit died in the attack, and we here are discussing how to deal with six who lived and are in custody.
You cannot classify the 30 members of this special operations unit without confronting the army of 45,000 men from which they had been selected by their military commanders. When a unit of an army chooses a strategy of terror for military terms, don't its members become "war criminals" instead of becoming "civilian terrorists"? Certainly that is how it worked in every previous war.
A country that was created when a non-uniformed militia drew themselves up into a line at Lexington and Concord needs to be careful about claiming that the members of some other national militia or army aren't "real soldiers".
How many trials have occured in 6 1/2 years?
If it was a "priority" to have trials.
Closer to understanding.
But we have to use 'harsh interrogation' because we are dealing with the 20th hijacker of 9/11!! Do you want another 9/11? We can detain U.S. citizens indefinately because we had reason to believe he was going to use a dirty bomb!! Etc...etc...
When the facade is pulled away - all the lies come crashing down and the justifications cited for years on end evaporate. The policies these propaganda symbols helped create, however, will live on indefinately. It would be comical if it werent so tragic.
How do we know? The government says so, Q.E.D. How could you dispute reasoning like that?
(I mean, they *have* told us, but those were all lies that didn't check out.* Obviously we were inflicting insufficent distress ... we *still* haven't broken these savages.)
*The phone call we made to the President's proctologist was especially embarrassing. Whew!
What really puzzles me is how some self-described libertarians are enraged about <i>Kelo</i>, because they don't trust the government when it comes to expropriating land, but have no problem trusting the government to lock people up, without any sort of due process, forever.
The current class of Solons has had 18 months to push something up to the Oval Office. Where's the legislation directing Bush to do the right thing, as determined by the Congressional Democrats? C'mon, if Bush is the dope, surely the Congressional Dems know what to do, and can draft some legislation neatly resolving this... right?
I assume the poskim who took this position were not invited to dine with the others.
Couldn't the Dems at least roll out a frickin' legislative proposal? Is that too much to ask? I know they're busy with paying farmers to not farm, in order to keep prices up, and in establishing a new class of visas for supermodels, but still, if this is important to them, you'd think we'd see something.
I am appalled by the lack of spine shown by this Congress in addressing these issues, especially the use of torture by the administration.
Frankly, the situation created by Bush's minions is what I saw referred to recently as a Charlie Foxtrot. Evidence obtained pursuant to torture and duress should be excluded; it's arguable that *no* interrogation of them can be valid after that.
So trying these guys is going to be a huge problem for whoever's president in 2009. But it's obviously not acceptable for a KSM to walk, either.
Alas, Democratus invertibratis is one of the most common fauna in the Congress. They're so spooked, they think they'll look "soft on terror" if they argue that suspected terrorists are innocent until proved guilty.
My position all along is that this is a war, and applying criminal law to war is idiotic, the administration (or at least JAG) seems to have lost this distinction too. The focus should be on proving (with a preponderance of evidence) a combatants status whether legal, or illegal, and then detention through the duration. When Al Qaeda and/or the Taliban surrender then we can think about repatriation to the combatants lawful government, regardless of what happens to the detainees when they get there.
Hey did anybody see Bush's Dr Evil impersonation, its hilarious.
It's not an irrational fear, given how successfully that image has been demagogued.
Hey! Our congresscritters are more spineless than your congresscritters!
But, IOKIYAR.
Would you please compare and contrast the actual techniques used by Soviet, Japanese, and Nazi interrogators with the actual techniques used by American interrogators. It is ignorant, and silly to compare their techniques and moral culpability with American techniques and moral culpability. Even if they also used waterboarding, and other stress techniques, they would not be so villified if they stopped there. But they didn't.
Pray tell why? Is some torture better than others? We know we have tortured people to death. Is John McCain lying when he says he was tortured? After all, he was "only" subjected to stress positions and beatings. Hey, just because the stress positions left him unable to lift his arms above his shoulders, so what!
As for the Soviets. Well, the Soviets perfected the very methods of torture we are discussing here--sleep deprivation, stress position, prolonged standing, induced hypothermia, sensory deprivation and overload. They learned that the cruder methods of torture were unnecessary to get what they wanted--which was confessions of vast conspiracies and "wrecking" in show trials for public consumption. In fact, using crude physical methods that left marks would have ruined the effect of the public humiliation.
Even the NYT got around to noticing this, 3 years after the fact: Soviet-Style ‘Torture’ Becomes ‘Interrogation’.
They may have broken him in terms of getting a intelligence, but they did not break him morally, spiritually and physically, because that was not their aim. They wanted intelligence to try to stop another 9/11.
Even if we restricted ourselves to techniques the Japanese currently use on routine criminal subjects, the same people that are decrying our current techniques would still be whining and moaning about our inhumanity,
Well no, the Soviets were lawfully detaining criminals who were suspected of crimes against the state. Their confessions proved their guilt. Much like we lawfully detained the combatant Jose Padilla who
entered this country to scout out locations to plant a dirty bomb, planned to blow up apartment buildings by leaving the gas onfilled out an job application for Al Qaeda and provided them with material support."combatant Jose Padilla who
entered this country to scout out locations to plant a dirty bomb, planned to blow up apartment buildings by leaving the gas onfilled out an job application for Al Qaeda and provided them with material support." Of course that is not what anyone actually said about him. In Afghanistan everyone knew Padilla as "the American", "the Puerto Rican", and "the Dirty Bomber". Whenever you sat down with him you knew that when it was his turn to say something, he would give his pitch for making a dirty bomb, because he was an expert on Americans and knew it would have a much greater impact than any conventional explosive. However, it never amounted to anything more than big talk around the campfire. Even if you classifed him as a civilian, big talk is not an actual crime. As an enemy soldier, however, he was doubly protected. Soldiers are supposed to plan and train to kill people and blow stuff up, and it is not a crime for them to do it seriously, let alone BS about it.Padilla came to the US on "the apartments operation". He was supposed to kill Americans by blowing up high rise aparment buildings using natural gas. Just leaving the gas on would not be enough. He trained for the operation over 9 months at the facility near the Kandahar airport. This was not just talk, it was a real military mission, but that does not make it a crime. If he had actually killed all those civilians, it would have been a war crime, but getting back to my first comment in this thread, it is not a war crime to plan or train or intend to commit a war crime. You actually have to commit it.
Had Padilla been allowed to enter the country, and then been arrested later, then he could have been charged criminally for anything he did in the US while pretending to be a civilian. However, by taking him into custody before he legally entered the country and then classifying him as an enemy combatant, this blocked any criminal charges for anything he did as a soldier. The only crimes he would be accused of, and convicted of, would be things he did up to July 24, 2000 when he enlisted in the enemy army. I suppose that signing your enlistment papers can be regarded as a "job application", but most people would not use that term.
The government had said many things about what Padilla did after 4/24/2000. They claimed that he was dangerous and intended to be a mass murderer. They never claimed that he would or could be charged with civilian crimes for any of these things. So the fact that the only criminal charges apply to things he did before that date does not mean that the government in any way withdraws its claims about the next two years.
So the legal treatment of Padilla shows exactly the same legal problem with charging al-Qahtani. Lots of civilians clearly know nothing about military law. Lots of left wing and right wing people think that everyone in al Qaeda are just criminals. You can't make that claim, however, and then bring charges in a military court. A military court knows military law, and they know the rules that apply to captured enemy soldiers. No military court will convict an enemy soldier for simply talking about, or planning, or training, or even attempting a military operation. While both the right wing and the left wing may be too caught up in their ideological mythology to think seriously about the problem, or even admit that there is a problem, the JAGs know their job and apply the real law. That is one reason why al-Qahtani cannot be charged. People will become better educated when the military tribunals proceed and a lot of other charges are dismissed as defective.
And it isn't true.
John McCain is permanently disabled from North Vietnamese use of stress positions. (I'm taking Karl Rove's word on that.) We're using stress positions, but ours are magically different.
Sleep deprivation was perhaps the KGB's favorite torture. We're using it too. Ours must be different. Otherwise, we would be bad guys.
Japanese used waterboarding (as did the Inquisition) and we made it a count in a war crimes indictment. We use waterboarding and the Vice President of the United States calls it a no-brainer.
It's pretty telling that when the Nazis wanted important military information, as opposed to inciting fear, they didn't use torture. Perhaps our interrogators aren't getting real information. Perhaps they are trying to intimidate Moslems, while at the same time spewing out nonsense about the
JudeobolshevikIslamofascist conspiracy (note the similarity in those terms) to keep Kazinski and his friends satisfied with the perversions committed under their authority.Al Qaeda kills detainees. We kill detainees. They make video. We probably did, too, but so far it has been kept out of the press. (You can Google for Abu Ghraib for some stills, though.)
The ass-backwards logic that as the good guys, we must do good things permeates every nauseating self-justification the Communists and the Nazis ever made. Kazinski thinks that this time it's different.
No.
Since Padilla was a citizen, he was not subject to trial by a Military Commission. The MCA limits jurisdiction to aliens. Had he been tried, presumably for attempting to cross lines without uniform, he would have faced a General Court Martial. He has Fifth Amendment rights, and the only evidence against him were un-Mirandized statements during his FBI questioning and later military interrogation. So as with al Qahtani, no military charges were filed against him. Al Qahtani is and alien subject to the MCA. While he has no direct Fifth Amendment protection, the Third Geneva Convention (if it were found to apply) requires us to give to enemy soldiers the same rights we would give to one of our own soldiers charged with the same crime. This may be a momentary legal issue in the upcoming Commission proceedings. However, military law does not allow him to be charged as a spy (crossing lines without uniform) unless he is captured during the act. Once he was deported, that charge became unavailable, and (as I argue above) he committed no other offense chargable under military law.
This is the only way in which Padilla's citizenship matters. A US citizen who joins a foreign army at war with the US has no special status when captured by virtue of his citizenship. If charged with an offense, however, different jursidictions apply.