UC-Berkeley Law School on Tenured Professor John Yoo

Well, the answer to one of my questions has been answered. A few days ago I blogged about John Yoo's position at UC-Berkeley and how this seems kind of odd given the school's somewhat liberal past (and present for that matter). Anyway, I found this article about the law school's dean making some comments about Yoo. Like I said before, I'm sure Yoo is a brilliant man, but I would want to keep him as far from my school as possible given the context of Yoo's memo.

It seems as though Christopher Edley Jr. (the School of Law Dean at UC-Berkeley) takes great issue with Yoo's judgments but is somehow able to deflect the blame to the administration and the heads of Justice and Defense rather than Yoo himself. Edley said, "Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry," and, "President Bush and his national security appointees were the deciders." (Apparently Edley watches The Daily Show with Jon Stewart) In his defense, I agree with Edley, that it's important for the sake of academic freedom to have differing views, but I think Yoo's memo goes beyond "academic freedom" and differing views. Edley made a key observation, saying Yoo chose to allow politics to triumph over law; I couldn't agree more. I just don't see how someone like Yoo, who manipulates the law to terrible political ends, offers "academic freedom" within the framework of law. Furthermore, why do we want someone like that teaching future lawyers to manipulate and interpret law to the degree he did in his torture memo? Perhaps as a worst-case scenario, or, a what-not-to-do example?

God help us all if he's teaching "Ethics in Law".

Berkeley Dean Defends Law Professor

Pamela Hess, Associated Press, AP.Google.com, 11 April 2008

WASHINGTON (AP) — The law professor who wrote one of the seminal "torture memos" that cleared the way for harsh and what critics call abusive and illegal interrogation techniques is safe in his job, the dean of the school says.

University of California-Berkeley School of Law Dean Christopher Edley Jr. took sharp exception to Professor John Yoo's legal analysis for the Bush administration's Justice Department in a message posted on the school's Web site. But Edley said the responsibility for any resulting breaches of law rested with Yoo's clients — then-Defense Secretary Donald H. Rumsfeld and President Bush.

"Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders," Edley wrote.

"Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry," he said.

Yoo wrote a secret memo for the Pentagon dated March 14, 2003, which the Pentagon released last week under a Freedom of Information Act lawsuit. It outlines the legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas — so long as they did not specifically intend to torture their captives.

Yoo also referenced one of his earlier legal theories, now repudiated by the Justice Department: that the U.S. military was not required to observe constitutional protections against unlawful searches and seizures during domestic operations.

He built upon an earlier Justice Department memo that he helped draft which narrowly defined torture, and lowered the bar for how so-called enemy combatants could be treated.

"My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses, including a great many of his colleagues at Berkeley," Edley wrote. "If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless," he added.

While affirming Yoo's right to continue teaching at Berkeley and practicing law, Edley said Yoo had allowed politics to triumph over law.

"What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards," Edley stated.

In an e-mail to The Associated Press, Yoo declined to answer questions or comment specifically on Edley's memo.

"I am enjoying my teaching, research and writing at UC Berkeley, as I always have since 1993," he said. "I have always enjoyed the company of liberals, and while I cannot speak for them, I am sure they are not threatened by having a lonely conservative voice on the faculty."

Yoo received tenure at Berkeley in 1999. He took a leave of absence from 2001 to 2003 to serve as deputy assistant attorney general in the Office of Legal Counsel and returned to the school in 2004.

The House Judiciary Committee has asked Yoo to testify May 6 on the recently released memo, threatening to subpoena him if he refuses.

On Friday, Committee Chairman John Conyers, D-Mich., expanded the list of invited witnesses, noting AP and ABC News reports this week that top members of the Bush administration signed off on specific, harsh interrogation techniques. Conyers' list includes former Attorney General John Ashcroft, former CIA Director George Tenet, former Undersecretary of Defense Douglas Feith, Chief of Staff to the Vice President David Addington and former Assistant Attorney General Daniel Levin. Conyers said the committee will subpoena the officials if they refuse to appear voluntarily.

Copyright © 2008 The Associated Press. All rights reserved.

The Circle of Life [insert Elton John's song]: the Due Process of the Hybrid Guantanamo Bay Detainees

Yes, I decided to do a second blog today because I came across a couple articles that dove-tail off of some of my previous posts and add to what I said in the past. The article attached to this post can be put in my “Gitmo” series, as the trial of the U.S. detainees remains to be a key issue to be discussed in the rules of war of the Bush Administration. It has been said so many times before and I don’t feel like repeating it, but the detainees are effectively a third type of person-held-during-war-or-some-other-type-of-near-war, not to be confused with “prisoner of war”. These detainees are a hybrid: afforded basically none of the protections under prisoner of war status, and almost no effort to follow due process.

To be honest, I’m not really afraid of what the detainees will do when they get out of Gitmo, although I’m sure this experience would make them more radical. I am afraid of what their stories will do as a propaganda tool for terrorist/radical groups and people as well as tarnishing the U.S. reputation for due process. Similar to Bush’s claims that history will judge his presidency, Ahmed Darbi says, “History will record these trials as a scandal.” When Bush has made his claim, I have tried to contemplate a future in which the history book authors would view Bush in a positive light. I am not a huge Bush fan, but yes, I could possibly see this happening, but I think it is highly unlikely. Darbi’s prediction is much easier to envision because one does not have to look far into the future to see his statement coming true. In fact, there are plenty of authors in present day that view the detainee trials as a sham. Hopefully these trials can be resolved in the near future, but from the tone of the article below, the probability is low.

Saudi terror suspect: Military trials a 'sham'

Carol Rosenberg, Miami Herald.com, 9 April 2008

A Saudi captive called the war court here a sham at his hearing Wednesday, fired his Pentagon defense lawyer and was sent back to his prison camp cell with a promise from his military judge that his terror trial would go on without him.

"History will record these trials as a scandal," said Ahmed Darbi, the brother-in-law of a member of the suicide squad that struck the Pentagon on Sept. 11, 2001. "I advise you as a judge and all the people here to not continue this play, this sham." Darbi, 33, is charged as an al Qaeda conspirator and with providing material support for terror -- not in the 911 attacks, but on an unsuccessful plot to bomb vessels off the coast of Yemen between 2000 and 2002.

He is the fifth Guantánamo captive to be arraigned at a military commission and the second to refuse to cooperate with the first U.S. war crimes tribunal since World War II. A month ago, prison camp guards forced Afghan Mohammed Jawad out of his cell and into the commissions, where the man captured at age 17 declared his intention to boycott. "You will not be forced to be present. Do you understand that?" the judge, Army Col. James Pohl, told Darbi.

The court went silent for a few beats while the Saudi listened through his headset. "Yes," he replied. Then the judge advised, "If you are not present, the proceedings of the commission will happen in your absence." The captive had appeared for his two-hour session in the clean, white prison camp uniform of a cooperative captive and fingered his scraggly beard while listening attentively.

In measured tones, he repeatedly refused to participate in his upcoming military trial and refused his Pentagon's paid defense attorney, U.S. Army Lt. Col. Bryan Broyles. He asked for a Saudi lawyer. "To be honest, I consider my presence here at these commissions and presence of others here to be a crime against the law, a crime against divine justice and any earthly justice." The judge said he would keep Broyles on the case, as defense counsel, unless Darbi decided to participate and designated another approved lawyer.

Under the Military Commissions Act that set up the terror trials in 2006, only U.S. citizens can defend war court defendants. They are assigned military lawyers or judge advocates general, who can bring along civilian lawyers at no government cost. Foreign lawyers can act as consultants.

Broyles, in turn, said he would check with the Army and Kentucky bars on his ethical obligation to defend a client who had fundamentally fired him.

Darbi has repeatedly claimed torture in U.S. custody and particularly brutal treatment at the U.S. detention center in Bagram, Afghanistan. His testimony, via a sworn statement taken here, was admitted to the Texas court martial of a former Army guard who was charged with assaulting and mistreating detainees in Bagram but ultimately acquitted.

Darbi does not trust the system, said Broyles.

Asked whether his client thought he was being unfairly treated because his brother-in-law was Khalid al Mihdhar, one of the hijackers who crashed American Flight 77 into the Pentagon, Broyles replied: "If he doesn't think that, he'd be crazy. I think that." Darbi was captured at an airport in Azerbaijan and eventually turned over to U.S. forces, who transferred him first to Bagram and then to the remote prison camps here.

His charge sheets describe an ill-fated plot to drive a small explosive laden boat into a ship in the Strait of Hormuz.

The morning proceedings, Darbi's second appearance at the court, were fraught with translation problems. At one point, a a government translator referred in Arabic to the Army defense lawyer as "Lieutenant Darbi," At another point, the translation from Darbi's Arabic to English -- heard in the courtroom -- had him calling the session a "crime against humanity." Arabic speakers said he had not uttered the expression.

Broyles said his client had protested the court as a "human rights violation," and said his Pentagon paid translator would review an Arabic tape of the proceedings to correct the official transcript.

Also, perhaps signaling coming issues on the evidence phase of pretrial proceedings, the judge told U.S. government prosecutors that they could respond three ways on whether requested information actually exists -- yes, no or "neither confirm nor deny." The third option effectively means the evidence is classified secret or sensitive.

In doing so, Pohl was borrowing from a federal court standard called the "Glomar Response," in which the CIA refused to confirm or deny its relationship to a Howard Hughes ship, The Glomar Explorer, because any answer would compromise national security.

Darbi's next court hearing is May 21, a motions session on legal issues raised by the case.

War court sessions resume Thursday afternoon, with the arraignment of a Sudanese captive, Ibrahim Qosi, formerly charged as an al Qaeda payroll clerk who now accused of working as a driver and bodyguard for Osama bin Laden.

Then Friday, the military has scheduled a hearing in the case of Canadian Omar Khadr, who is accused of committing terror and murder as a 15-year-old in the grenade killing of a U.S. Army sergeant during a firefight at an alleged al Qaeda safehouse in Afghanistan.

The judge on the case, Army Col. Peter Brownback, has yet to rule on a motion by the Toronto-born Khadr's Pentagon lawyers that their client's case be treated as that of a "child soldier." Khadr, now 21, was sent to the prison camps here after his 16th birthday and has grown into 6-foot-2 adulthood behind the razor war of Guantánamo Bay.

© 2008 Miami Herald Media Company. All Rights Reserved.

Thoughts on Torture by "Yoo" Know Who

I seem to be spending a lot of time talking about torture but it is hard to avoid the subject when there are near-weekly developments. I stumbled across the article below and found it pretty interesting; interesting in the way that it made me sick to my stomach. The fact that John Yoo and the Bush administration were actually discussing the legal possibilities of some of these methods of torture is appalling. I’m also curious where the Religious Right has gone in the Bush Administration. I’m a firm believer in the separation of church and state, but how can anybody who voted for Bush because of his moral/religious stance POSSIBLY be happy with their vote after reading something like this? On top of that, Yoo says U.S. law prohibiting maiming does not matter in a time of war. I’m so glad the rest of the Justice Department dismissed Yoo’s 81-page memo (my faith in the U.S. Government is not lost) but it is amazing someone was proposing these ideas to begin with. I’m sure John Yoo is a very intelligent man, but how in the world is he employed at UC-Berkeley, especially given the school’s “liberal” history?

Permissible Assaults Cited in Graphic Detail
Drugging Detainees Is Among Techniques

By Dan Eggen

Washington Post Staff Writer
Sunday, April 6, 2008; A03

Thirty pages into a memorandum discussing the legal boundaries of military interrogations in 2003, senior Justice Department lawyer John C. Yoo tackled a question not often asked by American policymakers: Could the president, if he desired, have a prisoner's eyes poked out?

Or, for that matter, could he have "scalding water, corrosive acid or caustic substance" thrown on a prisoner? How about slitting an ear, nose or lip, or disabling a tongue or limb? What about biting?

These assaults are all mentioned in a U.S. law prohibiting maiming, which Yoo parsed as he clarified the legal outer limits of what could be done to terrorism suspects as detained by U.S. authorities. The specific prohibitions, he said, depended on the circumstances or which "body part the statute specifies."

But none of that matters in a time of war, Yoo also said, because federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's ultimate authority as commander in chief.

The dry discussion of U.S. maiming statutes is just one in a series of graphic, extraordinary passages in Yoo's 81-page memo, which was declassified this past week. No maiming is known to have occurred in U.S. interrogations, and the Justice Department disavowed the document without public notice nine months after it was written.

In the sober language of footnotes, case citations and judicial rulings, the memo explores a wide range of unsavory topics, from the use of mind-altering drugs on captives to the legality of forcing prisoners to squat on their toes in a "frog crouch." It repeats an assertion in another controversial Yoo memo that an interrogation tactic cannot be considered torture unless it would result in "death, organ failure or serious impairment of bodily functions."

Yoo, who is now a law professor at the University of California at Berkeley, also uses footnotes to effectively dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war. He frequently cites his previous legal opinions to bolster his case.

Written opinions by the Office of Legal Counsel have the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language. Yoo's 2003 memo has evoked strong criticism from legal academics, human rights advocates and military-law experts, who say that he was wrong on basic matters of constitutional law and went too far in authorizing harsh and coercive interrogation tactics by the Defense Department.

"Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about," said Dawn Johnsen, an OLC chief during the Clinton administration who is now a law professor at Indiana University. "He is saying that poking people's eyes out and pouring acid on them is beyond Congress's ability to limit a president. It is an unconscionable document."

Yoo defends the memo as a "near boilerplate" argument in favor of presidential prerogatives, and says its fundamental assertions differ little from those made by previous presidents of both parties. In comments to The Washington Post and other news organizations, Yoo has also criticized the Justice Department for issuing new legal opinions that do not include detailed discussions of specific interrogation tactics, which he views as crucial to defining the boundaries of what is lawful.

"You have to draw the line," Yoo said in an Esquire magazine interview posted online this past week. "What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more -- we could have written it in a much more palatable way, but it would have been vague."

The 2003 memo includes long discussions of the relative illegality of a wide variety of coercive interrogation tactics, including a British technique in which prisoners are forced to stand in a spread-eagle position against a wall and an Israeli technique, called the Shabach, in which a suspect is hooded, strapped to a chair and subjected to powerfully loud music.

Various courts had declared both tactics to be inhumane, but not torture, Yoo noted. This meant that they were illegal under a provision of the Geneva Conventions that the administration said had no relevance to unlawful combatants in its custody.

In another passage, discussing the bounds of Eighth Amendment protections involving confinement conditions, Yoo concluded that "the clothing of a detainee could also be taken away for a period of time without necessarily depriving him of a basic human need." Yoo cited the need to prove "malice or sadism" on the part of an interrogator before he or she could be prosecuted.

The interrogation memo was considered a binding opinion for nine months until December 2003, when OLC chief Jack Goldsmith told the Defense Department to ignore the document's analysis.

In his 2007 book "The Terror Presidency," Goldsmith, who now teaches law at Harvard University, said that some of the memos written by Yoo and his colleagues from 2001 to 2003 were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."

Douglas W. Kmiec, a Pepperdine University law professor who served as constitutional legal counsel for Presidents Ronald Reagan and George H.W. Bush, said Yoo can be faulted "for not writing more narrowly." It is often better to "brush in hazy gray" rather than "spray paint in black and white," Kmiec said.

Policy Changes: A Pesticide for the "Bad Apples" in the Military?

Essentially since World War II, the US has been a sort of “defender of right and wrong”. There are plenty of examples where the US has stepped-in and stopped an injustice. However, in the age of the Global War on Terror (GWOT) I believe the US has taken a step back, making decisions that may have the best intentions, but have actually given America a black-eye. For example, the decision to allow torture tactics, has broadly offended the international community, especially those committed to the Geneva Conventions. Recent policies seem to highlight a realist decision maker, doing whatever it takes to protect the state.

Distanced from the policy makers, atrocities such as the use of excessive force against combatants and non-combatants as well as improper behavior against detainees by the US military has further added to the growing “black-eye” of American. I am not a soldier but I know that all US military personnel have some training regarding the rules of war and specific rules of engagement. So, despite training, some US military personnel still allow themselves to treat prisoners poorly, or get a little trigger happy.

What policy changes can decrease atrocities in conflict situations?

Based on class lectures, several readings, and the film Ghosts of Abu Ghraib, I propose the following changes that may or may not directly impact US military doctrine, but also offer a guide to decrease poor behavior.

One – Roll-back the DoD memorandum signed by Donald Rumsfeld that effectively granted permission to use creative ways to “interrogate” detainees.

While the memo does not specifically grant permission to torture detainees, it created a feeling or “do whatever it takes” throughout the US military. This assertion is backed by several statements of military personnel at Guantanamo Bay and Abu Graib.

Two – Improve communication through every level of the Armed Services, specifically changes in military policy and the rules of engagement.

One of the problems noted by several of the personnel that committed atrocities in Iraq was the lack of understanding down the chain of command. One soldier said that the policies changed so many times that he did not remember what rules they were operating under from day-to-day. Furthermore, rules of engagement are important for nearly every person in the military, and yet the specific rules are largely classified, out of the reach of some soldiers on the ground. In addition, there should be regular meetings and/or drill “role playing” so commanding officers can test their soldiers with hypothetical situations and fine-tune their response.

Three – Clearly define acceptable and unacceptable means of aggressive interrogation.

As evident in the Rumsfeld memo, some activities are clearly defined and noted as “acceptable” but the other proposed strategies are not outright condemned. This leaves some uncertainty in the minds of those on the ground. Furthermore, the comments from the DoD seem to suggest that more aggressive interrogation that violates the Geneva Conventions may be used at some point.

Four – Maintain the organizational expertise structure of specific military commands or create new commands with proper training to effectively complete the mission.

One of the major problems with Abu Ghraib may have stemmed from the fact that the guards were actually Marine MPs, not correction officers. Trained for combat, the group was thrown off-guard when they arrived at the prison and were told to put away their weapons. Also, the organizational structure was changed; the MPs began reporting to military intelligence and civilian intelligence personnel rather than their designated superior, General Karpinski. Essentially, there was “mission creep” within the MPs stationed at Abu Ghraib.

Torture: an effective tool?

Former CIA Officer: Waterboarding Is Wrong, But It Worked

J.J. Green, WTOPNews.com, 20 March 2008

WASHINGTON -- It was 2 a.m. on the dot on March 28, 2002 when the Punjab Elite Force accompanied by CIA officers and FBI agents broke down the door to a two-story safe house in Faisalabad, Pakistan.

A struggle ensued: Shots were fired and people were hit; knives were wielded and people were stabbed.

When the smoke cleared and the shouting stopped, a member of the Punjabi SWAT team had a severe knife wound, and more than a dozen al Qaida operatives were down -- some with severe gunshot wounds.

A man named Abu Zubayda was among the injured. Zubayda was No. 3 in the al Qaida power structure, and a close associate of Osama bin Laden.

Al Qaida documents indicate Zubayda was the organization's main logistics operative. His own statements later revealed he was the keeper of secrets of al Qaida's plans to bring the U.S. to its knees for the second time in six months - after Sept. 11, 2001.

The CIA had a vested interest in keeping him alive.

"Al Qaida had released statements indicating that there was another attack coming. It was going to be more spectacular than the attacks we saw on Sept. 11, and even said that al Qaida wouldn't rest until the green flag of Islam flew over the White House," former CIA Officer John Kiriakou says.

Zubayda supposedly knew the names, dates and details about those planned "spectacular" attacks, but he was dying.

He had been shot three times, and suffered wounds to the groin, thigh and stomach. After Pakistani doctors treated him, Zubayda was reportedly moved to a secret location -- on orders from a top intelligence official -- and was treated by an American trauma specialist dispatched from the U.S.

Six weeks later, when Zubayda had recovered enough to talk, he did -- but "he wanted to talk about poetry or his family or Islam. He didn't want to talk about anything that was truly important to us," Kiriakou says

Zubayda changed his mind after being introduced to the centuries-old technique of waterboarding.

"After [Zubayda] was waterboarded, he said God had come to him in his cell and told him to cooperate. And so he did. It was almost like flipping a switch, where one day he was not cooperative and the next day he was very cooperative," Kiriakou says.

Kiriakou did not witness the transformation in person. However, in his first interview since being threatened with legal action in December for discussing the destruction of waterboarding tapes, Kiriakou tells WTOP, "by the time waterboarding was being used, I had returned to a position at [CIA] headquarters from South Asia, but I was in a job at headquarters that afforded me access to that information."

Intelligence sources say Zubayda eventually gave up key information about Sept. 11 mastermind Khalid Sheik Mohammed, who was captured almost a year later. Authorities also say he divulged information that prevented other terror attacks inside the U.S.

There have been questions about whether Zubayda suffers from mental illness and whether his information was worth anything.

Kiriakou refutes those questions.

"The reason we went after Abu Zubayda in the first place was because he was al Qaida's logistics chief. He was one of the guys who was instrumental in getting the hijackers in the U.S.; in making sure they had appropriate training; in making sure they had money and they had places to live. This isn't someone who was mentally challenged or mentally ill in any way. This guy had to have a mind for detail. He knew exactly what he was doing."

The 9/11 Commission agreed with Kiriakou in its conclusion. "KSM [Khalid Sheik Mohammed] and Abu Zubayda each played key roles in facilitating travel for al Qaida operatives. In addition al Qaida had an office of passports and host country issues under its security committee."

But waterboarding apparently has its failings, Kiriakou says.

"It's my understanding - this is not first-person information. I have heard this from others - that another prisoner who was waterboarded, ended up just saying what he though his interrogator wanted to hear and the information was not reliable," Kiriakou says.

A fierce debate is raging across the country over the waterboarding. Accounts from Kiriakou and many others detail the usefulness of waterboarding, but others say pouring water up a person's nostrils to extract information is cruel and inhumane.

The GOP's presumptive nominee for President Sen. John McCain, R-Ariz., said recently, "I think that waterboarding is torture and illegal, but I will not restrict the CIA to only the Army Field Manual."

Democratic presidential candidates Sen. Barack Obama (D-Ill.) and Sen. Hillary Clinton (D-NY) supported a failed effort to ban the technique.

House Speaker Rep. Nancy Pelosi (D-Calif.) said, "failing to legally prohibit the use of waterboarding and other harsh torture techniques undermines our nation's moral authority, puts American military and diplomatic personnel at-risk, and undermines the quality of intelligence."

The firestorm is exactly what Kiriakou wanted.

"We really needed to have a true national debate about whether or not waterboarding was something we wanted to use as a matter of policy when interrogating al Qaida prisoners who were not cooperative and who we thought had actionable intelligence about impending terrorist attacks," Kiriakou says.

When asked about his own view, Kiriakou says, "waterboarding is probably wrong. I believe that it's torture. I believe that at this point, so many years after Sept. 11, we ought not to be doing it. But with that said, when it was used on Abu Zubayda in 2002, it actually worked."

Kiriakou, like many, is conflicted about whether to use waterboarding as an interrogation method.

"Are we willing to lose 100 people, 1,000 people in a terrorist attack and then maintain the moral high road and not waterboard? I'm not sure," Kiriakou says.

Al Qaida's low-level young fighters are "a little more than uneducated illiterate teens from the countryside and small villages in the Middle East and south and central Asia," he says.

While uncertain about waterboarding, Kiriakou says there are other methods of defending against al Qaida.

"I believe if those people had access to jobs, to educations and had something hope for, to look forward to, al Qaida wouldn't be attractive to them," Kiriakou says.

Copyright 2008 by WTOP. All Rights Reserved.

A bit of the interview on The Daily Show between host Jon Stewart and Ronald Kessler, author of the book "The Terrorist Watch: Inside the Desperate Race To Stop the Next Attack." I cut some of the interview and left the parts where Kessler specifically discusses waterboarding and torture (or dances around the issues).

The Daily Show -- Comedy Central
12 March 2008

STEWART: What do you think of the more coercive stuff, the waterboarding and such?

KESSLER: I think it was fine in that particular situation. Most of the time, the CIA does not want to use waterboarding. They want to use cooperation. But in that case, there was a threat that there would be a second wave of attacks. These guys were not talking. They had to get information, and they did. And they stopped plots that killed, or would have killed people.

STEWART: Does that hurt or help us in the long run?

KESSLER: I think, in the long run, if we protected ourselves from another attack, that's the most important thing. You know, it's true that the Iraq war has contributed to the hatred...you know, it's used as a propaganda tool.

.....

STEWART: You are...you're getting...but the thing about waterboarding that always struck me is, even if it saved some lives, do we give up too much of our soul to do that? Because isn't the measure of a country how it handles itself in difficult times, not in easy times? It's very easy to say, "We abide by the Geneva Convention," until we found out somebody wants to hurt us and then, hey man, everybody for themselves.

KESSLER: Well, actually the Geneva Conventions allow this, because these people are not regular military people in uniforms...

STEWART: The Geneva Conventions allow you to waterboard people who don't wear uniforms?

KESSLER: Yeah, because they're not...these are people who behead people, they don't abide by...

STEWART: That may be a technicality. I'm not sure that the spirit of the Geneva Conventions is, like, "Hey look, if they don't have a hat, do whatever you want. ((laughter))

KESSLER: Our own Special Operations forces are, in fact, subjected to waterboarding as part of their training, so....

STEWART: Because they might have it done to them.

KESSLER: Exactly. And it's not torture in the sense that it's painful. That's what torture is defined as...It's harsh...

STEWART: That's an argument that's tough to make, that it's not actually....drowning someone is torture. ((laughter)) The only point I was going to make was we prosecuted the Japanese for waterboarding our soldiers in World War II.

KESSLER: It was a different kind of waterboarding. ((laughter)) It actually involved...

STEWART: What did we waterboard on [Temperapedics]? ((laughter)) What do you mean? How different? What kind of water?

KESSLER: Using real water, as opposed to just covering them with cellophane and giving the impression, but...the important thing is...

STEWART: This is like the mock apple pie of waterboarding, that we do. ((laughter)) It's not a real-type waterboarding thing.

KESSLER: And actually, it was only used three times, and not since 2003. Now, they are not going to use it anymore. So it really is moot. The important thing is....

STEWART: We learned our lesson.

KESSLER: OK. ((laughter)) I'm agreeable. But the important thing is, we have not been attacked, it's because of these measures, it's because of the Patriot Act even though that's demonized.

STEWART: But it's hard to point to causation because they're so secretive. I mean, what they're saying is, "Trust us, it's because of this," even though a lot of the other things you found about us have turned out to be less than credible.

KESSLER: Well, we know that these terrorists are being rolled up all the time. We know they are being rolled up because of these measures, including the Patriot Act. You know, the librarian thing....

Gitmo: How Detainees Love the Freedom of America Experienced from Cuba

This article is a bit of a dove-tail off of the Omar Khadr post I made a few weeks ago, yet the Khadr case and this case seem to be drastically different. While a military trial by the US is much different than a domestic criminal trial, there are some concerns regarding the case of Ibrahim Ahmed Mahmoud al Qosi. According to the chief defense counsel, Army Col. Steve David, he has not been given the personnel or resources to adequately defend Qosi. He has only 9 assistants while the prosecution has 4 times as many. Disregarding Qosi’s guilt or innocence this article highlights some institutional flaws as well as the political football this could turn into upon the change in office. I’ll be interested to see if anything does change such as the author’s suggestion that some of these cases move to a civil or criminal court inside the US versus offshore. I feel like this would be a good question for the presidential contenders. Anyone want to make a guess on what the candidates would do?

Disclaimer: I am a registered Democrat and consider myself to be moderate. Right now the order of my selection for the next President goes (1) Obama, (2) McCain, and (3) Clinton. This may explain my predictions below which are mainly supposed to be a little funny more than reflect my personal political views.

My Guess (with some sarcasm):

Clinton – “I’ve always supported the right to a fair and speedy trial… and I promise to shut down Gitmo the day I come into office… I have the experience! You can’t trust the Republican part right now and Obama is just a baby.”

McCain – “First of all I don’t believe in torture, and I think we should close Gitmo… however, I can’t look soft on national security so I will order the immediate trial of all Gitmo detainees under the current rules and close Gitmo by the end of my 4 years in office as President. Clinton and Obama will just release all of these terrorists back into the world where they can attack America and spread hate, so I’m here to create fear so that you vote for me.”

Obama – “I never supported the illegal war in Iraq so we wouldn’t be in this position to begin with if anyone had listened to me! If we had simply concentrated on Afghanistan maybe we would have properly collected the evidence needed to properly place these detainees on trial. Clinton and McCain will just lead us down the same path… I am the necessary change, trust me… (wink).”

Another Guantanamo prisoner charged with war crimes

An alleged former aide to Osama bin Laden is the 13th detainee at the U.S. military prison to be indicted.
Carol J. Williams, Los Angeles Times, 6 March 2008, Inside "A" Section

MIAMI -- The Pentagon served war crimes charges on a 13th prisoner at the Guantanamo Bay detention camp Wednesday, signaling the Bush administration's intent to step up prosecution of terrorism suspects before the architects of the controversial military tribunals leave office.

The charges allege that Ibrahim Ahmed Mahmoud al Qosi of Sudan provided material support for terrorism and conspired with Osama bin Laden. The case is the latest in a series of recent indictments against detainees who had been held without charge for years at the U.S. military prison at Guantanamo.

Al Qosi, 47, is accused of having worked as a driver, bodyguard, supply clerk and cook for the Al Qaeda leader at the "Star of Jihad" compound near Jalalabad, Afghanistan.

He is one of about 40 Al Qaeda aides captured by Pakistani forces in December 2001 near the Afghan region of Tora Bora, where Bin Laden survived weeks of bombardment by U.S. warplanes.

Al Qosi is accused of helping Bin Laden and his family escape to Tora Bora, a remote, rugged and naturally defended stronghold on the Pakistani border. He could face life in prison if convicted by a panel of U.S. military officers who will convene to act as a jury.

The military commissions have two courtrooms at the Expeditionary Legal Complex, a maze of tents, portable offices and one high-security building that sprawls across an unused airfield on the U.S. naval base in southern Cuba.

The limited courtroom space had been expected to slow the pace of indictments because once charged, a prisoner must be brought before a judge within 30 days and his trial begun within four months.

Cases initiated last year against another Bin Laden aide, Salim Ahmed Hamdan of Yemen, and Canadian Omar Khadr, who was 15 at the time of his alleged crimes, have stalled repeatedly as military jurists wade through uncharted legal territory.

Dozens of motions are pending in the cases, and the 30-day clock for arraignment is running on three others.

By filling the trial calendar, the Pentagon appeared to be setting up dry runs of the untested legal process that will be used to prosecute self-professed Sept. 11 mastermind Khalid Shaikh Mohammed and five other "high-value" prisoners later this year.

Charges carrying the death penalty were filed last month against Mohammed and the others, but those trials are unlikely to begin for months because of procedural delays and a dearth of defense resources. Only one of the six suspects charged in the Sept. 11 attacks -- the so-called 20th hijacker, Mohammed Qahtani -- has a military lawyer.

The chief defense counsel, Army Col. Steve David, has complained to the Office of Military Commissions in Washington that he has insufficient staff to properly defend the prisoners under indictment. Only nine military defense lawyers have so far been assigned to David's team, whereas the chief prosecutor, Army Col. Lawrence Morris, has four times that many attorneys at work preparing trials.

"The entire system of the military commissions is founded on the concept of defense by military defense counsel, and insufficiency in that defense is a serious institutional flaw," said Miles Fischer, an attorney who has attended Guantanamo sessions for the New York City Bar Assn., whose members represent prisoners trying to get civilian court review of their detention.

Some observers say the stepped-up pace of prosecutions could be a way of ensuring that some defendants are tried by the commissions before the end of President Bush's term.

"They may be attempting to get these cases to progress to a point where it would make it harder for the next president to move them to civilian courts, where they belong," said Shayana Kadidal, senior attorney with the Guantanamo Global Justice Initiative of the Center for Constitutional Rights in New York.

Al Qosi, Hamdan, Khadr and seven others were charged with war crimes in 2003 and 2004, but their trials had not begun before the U.S. Supreme Court declared the commissions unconstitutional in June 2006.

The Republican-controlled Congress at the time passed the Military Commissions Act three months after the high court decision, resurrecting the offshore tribunal.

Copyright 2008 Los Angeles Times