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The case of Ali Saleh Kahlah al-Marri was No. 1 on my list for Bush holdovers in desperate need of new thinking from the Obama administration. It wasn't a hard call. Al-Marri is the only person arrested in the United States who the government is holding indefinitely in military detention without charges. And now, in a huge switch that makes me feel a whole lot more sure that we've finally made it to a new legal era, al-Marri is about to be indicted. Normally, defense lawyers don't applaud when it's announced that their clients will face charges. But Marri's lawyers have been battling since 2003 to get their client before a judge in the regular old federal-court system.
Those same lawyers will no doubt be incredibly frustrated if the Supreme Court now dismisses al-Marri's constitutional challenge to his detention as moot. If the court had ruled for al-Marri and rejected the sweeping Bush claim of executive power, that would have been enormous vindication. But we don't know what the court would have done. And now we know that the executive branch is capable of doing the right thing.
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Remember back when we didn’t believe in torturing people? Turns out it's way more interesting to reopen the whole question and bicker with the umps about their recent calls. Let’s go to the telestrator:
Out on the field this week, we have Sen. Joe Lieberman, I-Conn., announcing yesterday that water-boarding is legal whereas “putting burning coals on people's bodies” is torture. Shooting the breeze with the BBC, Justice Antonin Scalia declares that he would have no problem shoving a little “something under the fingernails, smack him in the face” but conceded that these are not easy questions. And Sen. John McCain scores a touchdown for the opposing team when he says he wants torture to be illegal unless the CIA is doing it, in which case it isn’t. Finally, the week closed with Steven Bradbury, who heads up the Office of Legal Counsel at the Justice Department and is confident that it isn’t really water-boarding if it’s changed since the Spanish Inquisition.
It would be totally awesome if we could just throw open the whole U.S. Code and race around the football field renegotiating all of it for ourselves, don’t you think? I'm going to redefine shoplifting this weekend and go find me some Prada sandals.
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On the legal front this week, we have Michael Mukasey's can't-pin-me-down testimony of yesterday, as Dahlia reported. And also this dismaying report, via his lawyer and the LA Weekly's blog, that a Guantanamo prisoner has contracted AIDS in the camp. If this is true, it's an awful example of the individual harms the Bush administration has caused with its grim insistence that the rule of law and the war on terror shall not mix.
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Reading the story about the CIA's destruction of interrogation tapes that Dahlia points to, I couldn't help being struck by an eerie parallel. This story is unfolding a couple of days after the Supreme Court heard oral argument in the latest case about whether the Guantanamo Bay detainees have any right at all to get to federal court. Days after an earlier go-round about Guantanamo at the high court, in 2004, the Abu Ghraib story broke. The timing raised eyebrows because at oral argument, Paul Clement (now solicitor general) had answered "no" to a question from Justice Ruth Bader Ginsburg about whether the government ever engages in torture.
There was no moment like that at argument this week, and the timing of the CIA story seems driven by the New York Times, which says that it told the CIA Wednesday that it was about to report on the tapes' destruction. And yet the parallel is there: This week, the government assured the court that the detainees had more rights than anyone in their situation before. Never mind that we're destroying the evidence of how we've treated them. Just don't look behind the curtain.
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Remember that whole big legal debate we were having last month about water-boarding? Remember when we were trying to understand why Michael Mukasey wouldn’t just come out and say water-boarding is torture? Remember when everyone thought the Bush administration was just trying to provide legal cover for the torturers???
Wrong. Why provide legal cover for the torturers if you can just destroy the evidence?
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Today's Washington Post review of the new Robert Redford movie Lions for Lambs calls it "strangely inert'' and says its take of the war on terror "plays too often like a college colloquium, with one extended scene of a classroom debate suffering from all the sleep-inducing effects of the real thing.'' Not only that, it accuses the film of "ambiguity.'' Ouch. But is it really such a bad thing to walk out of a political movie without a headache from repeated blows to the brain? I saw a screening last night with my movie-crazy 11-year-old son—who, needless to say, does not go for "inert''—and his only criticism was that they should have shot it on film. "A great movie,'' he thought. And for better or worse, not exactly My Dinner With Andre.
My only quibble was with the particulars of the spanking the movie gives the Judy Miller stand-in, played by Meryl Streep, for the media's role in selling the war in Iraq. OK, whuppin' deserved, but not in the way it's set up. Streep's veteran reporter is torn over whether to make what she sees as the clear moral choice—refusing to broadcast an exclusive about a new American military initiative in Afghanistan altogether, or maybe breaking the story with the crawl line, "In another breathtakingly bad idea from our government today ... '' Or, she could do the wrong thing by just reporting the story. No ambiguity there, but also no relation to the many ethical choices reporters actually face. Still, this is no polemic; it's a love note to our troops, a movie with lots of heart but no pat answers, and one that might even jump-start some of those uncomfortable political discussions we tend to shy away from.
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Hillary jumps the same way as Obama:
"I am deeply troubled by Judge Mukasey’s continued unwillingness to clearly state his views on torture and unchecked Executive power.
The Attorney General is the chief defender of the rule of law in our country. After Alberto Gonzales's troubled tenure, we cannot send a signal that the next Attorney General in any way condones torture or believes that the President is unconstrained by law. When we leave any doubt about our nation’s policy on torture, we send a terrible message to the rest of the world. Judge Mukasey has been given ample opportunity – both at his confirmation hearings and in his subsequent submission to the Judiciary Committee – to clarify his answers and categorically oppose the unacceptable interrogation techniques employed by this Administration. His failure to do so leaves me no choice but to oppose his nomination."
Meanwhile, the Democrats on the Judiciary Committee await Mukasey's answers to the questions they've asked him.
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In a press release today, Obama said of Mukasey: “While his legal credentials are strong, his views on two critical and related matters are, in my view, disqualifying. We don't need another attorney general who believes that the President enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security. And we don't need another attorney general who looks the other way on issues as profound as torture. Judge Mukasey's professed ignorance of the debate over the propriety of practices like “waterboarding,” or simulated drowning, as a means of interrogation, was appalling."
Now what? Do other Democrats--among them Hillary Clinton--jump the same way? Or do they (ie some of the senators on the Judiciary Committee) keep trying to look like they're pressing Mukasey while planning to wave him through?
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Here's what Giuliani has to say about waterboarding, in reponse to a question about AG-choice Mukasey's refusal to say that the tactic amounts to torture: “Well, I’m not sure it is either. It depends on how it’s done. It depends on the circumstances. It depends on who does it. I think the way it’s been defined in the media, it shouldn’t be done. The way in which they have described it, particularly in the liberal media. So I would say, if that’s the description of it, then I can agree, that it shouldn’t be done. But I have to see what the real description of it is.”
Whaaa? The descriptions of waterboarding are clear and unrefuted. They come from inside the CIA. Here's a short video reenactment. As Dahlia points out to me, Giuliani's hemming and shuffling is like the senators who didn't bother to find out how the Guantanamo detainees were treated before voting on John McCain's anti-torture provision in the Detainee Treatment Act. If you don't know what's happening, you can keep going along with it.
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