The US has sometimes resorted to playing loud Rock n’ Roll to break prisoners’ will to resist. And some musicians are offended at their being selected for use as negative reinforcement.

Andrew O Selsky:

Blaring from a speaker behind a metal grate in his tiny cell in Iraq, the blistering rock from Nine Inch Nails hit Prisoner No. 200343 like a sonic bludgeon.

“Stains like the blood on your teeth,” Trent Reznor snarled over distorted guitars. “Bite. Chew.”

The auditory assault went on for days, then weeks, then months at the U.S. military detention center in Iraq. Twenty hours a day. AC/DC. Queen. Pantera. The prisoner, military contractor Donald Vance of Chicago, told The Associated Press he was soon suicidal.

The tactic has been common in the U.S. war on terror, with forces systematically using loud music on hundreds of detainees in Iraq, Afghanistan and Guantanamo Bay. Lt. Gen. Ricardo Sanchez, then the U.S. military commander in Iraq, authorized it on Sept. 14, 2003, “to create fear, disorient … and prolong capture shock.”

Now the detainees aren’t the only ones complaining. Musicians are banding together to demand the U.S. military stop using their songs as weapons.

A campaign being launched Wednesday has brought together groups including Massive Attack and musicians such as Tom Morello, who played with Rage Against the Machine and Audioslave and is now on a solo tour. It will feature minutes of silence during concerts and festivals, said Chloe Davies of the British law group Reprieve, which represents dozens of Guantanamo Bay detainees and is organizing the campaign. ...

Not all of the music is hard rock. Christopher Cerf, who wrote music for “Sesame Street,” said he was horrified to learn songs from the children’s TV show were used in interrogations.

“I wouldn’t want my music to be a party to that,” he told AP.

Bob Singleton, whose song “I Love You” is beloved by legions of preschool Barney fans, wrote in a newspaper opinion column that any music can become unbearable if played loudly for long stretches.

“It’s absolutely ludicrous,” he wrote in the Los Angeles Times. “A song that was designed to make little children feel safe and loved was somehow going to threaten the mental state of adults and drive them to the emotional breaking point?” ...

Some musicians, however, say they’re proud that their music is used in interrogations. Those include bassist Stevie Benton, whose group Drowning Pool has performed in Iraq and recorded one of the interrogators’ favorites, “Bodies.”

“People assume we should be offended that somebody in the military thinks our song is annoying enough that played over and over it can psychologically break someone down,” he told Spin magazine. “I take it as an honor to think that perhaps our song could be used to quell another 9/11 attack or something like that.”

Hat tip to serving military officer.

John Rosenthal, in Policy Review, demonstrates that, contrary to widespread belief, Bush Administration standards on coercive interrogation were actually stricter than standards enforced within the European Union on police interrogation.

Frankfurt, Germany, 1 October 2002, early morning:

In the Frankfurt Police Headquarters, the atmosphere is tense. Deputy Police Chief Wolfgang Daschner is losing patience. On the previous day, his officers arrested one Magnus Gäfgen, a 27-year-old law student. Gäfgen is suspected of having kidnapped 11-year-old Jakob von Metzler, son of the banker Friedrich von Metzler. Two days earlier, Gäfgen had personally collected a 1-million-euro ransom payment. But there is no sign of the boy and Gäfgen has refused to give police interrogators accurate information about his whereabouts. A police psychologist, observing the questioning, describes Gäfgen’s responses as a “pack of lies” [Lügengebäude]. Deputy Police Chief Daschner fears that Jakob’s life may be in danger. In a memorandum, he writes: “We need to ascertain without delay where the boy is being held. While respecting the principle of proportionality, the police have an obligation to take all measures in their power to save the child’s life.”

Daschner decides to act. He dispatches police inspector Ortwin Ennigkeit to the office in which Gäfgen is being held for interrogation. Ennigkeit’s assignment: to make Gäfgen talk — if necessary by threat of torture. Indeed, Daschner has resolved not only to threaten Gäfgen with pain, but to carry out the threat if his prisoner is not otherwise forthcoming. A doctor has been found to supervise the proceedings.

In the interrogation room, Ennigkeit tells Gäfgen that a “special officer” is on his way. If Gäfgen does not tell Ennigkeit where the boy is, the “special officer” will “make him feel pain that he will not forget.” On Gäfgen’s own account, the formula is still more menacing: the officer “will make you feel pain like you have never felt before.” “Nobody can help you here,” Ennigkeit tells him, according to Gäfgen’s testimony. “We can do whatever we want with you.” On Gäfgen’s account, moreover, Ennigkeit already begins to rough him up: shaking him so violently that his head bangs against the wall and hitting him in the chest hard enough to leave a bruise over his collarbone. Gäfgen’s testimony is consistent with the tenor of Daschner’s instructions, which, on Daschner’s own admission, called for the “use of direct force” [ Anwendung unmittelbaren Zwangs].

In any case, whether the mere threat of pain has been sufficient or the latter has had to be supplemented by the “use of direct force,” within minutes of Ennigkeit’s entering the interrogation room Gäfgen talks. He tells Ennigkeit where Jakob is to be found. Police rush to the location and find the boy dead, his corpse wrapped in plastic and submerged under a wooden jetty in a pond.

Guantánamo Bay Prison Camp, Cuba, ten days later:

The atmosphere in Joint Task Force 170 is tense. The task force has been set up to obtain intelligence from detainees, but the effort is lagging and army interrogators are losing patience. They have discovered that one of the detainees appears to have been directly involved in the 9/11 plot. Mohammed al-Qahtani attempted to enter the United States in early August 2001, but was turned back by immigration officers in Orlando, Florida. Telephone intercepts of conversations of 9/11 facilitator Mustafa al-Hawsawi indicate that al-Qahtani was slated to serve as the missing “twentieth hijacker” on September 11. Plot leader Mohammed Atta is known to have been at Orlando International Airport on the day of al-Qahtani’s arrival, presumably to meet him. Al-Qahtani was sent back to his native Saudi Arabia and then traveled to Afghanistan. In mid-December, two months after the start of Operation Enduring Freedom, he was taken prisoner on the Pakistani border along with 29 other suspected al Qaeda members apparently fleeing the Battle of Tora Bora.

In early October 2002, the questioning of al-Qahtani has been going nowhere. Interrogators and staff psychologists are convinced that he is lying: repeating prefabricated cover stories, no matter how implausible, as required by al Qaeda security protocols. He insists, for example, that he traveled to the United States to import used cars and that he was in Afghanistan merely to purchase falcons.

The first anniversary of the 9/11 attacks has only just passed. A spike in intelligence has American officials on high alert. On October 8, Bin Laden deputy Ayman al-Zawahiri releases an audio statement threatening new attacks against America and American allies. The commanders of JTF170 decide they need to act. On October 11, Major General Michael E. Dunlavey sends a memo to U.S. Army Southern Command requesting authorization to use more aggressive interrogation techniques with the detainees. ...

JTF170 requests authorization to threaten detainees with “painful consequences” if they fail to cooperate. As it so happens, this is precisely the method used by German police inspector Ortwin Ennigkeit a mere ten days earlier to obtain the cooperation of Magnus Gäfgen. Following the advice of Department of Defense general counsel William J. Haynes, the request for authorization of this method is . . . refused.

In June 2005, the child-murderer and law student Magnus Gäfgen lodged a complaint against Germany with the European Court of Human Rights. In his complaint, Gäfgen accused Germany of having violated his rights under the European Convention on Human Rights and, more specifically, of having violated the prohibition on torture contained in Article 3 of the Convention.

On June 30, 2008, the European Court of Human Rights rejected Gäfgen’s complaint and cleared Germany of the charge of tolerating torture. The Court found that the treatment to which Daschner and Ennigkeit subjected Gäfgen did not reach the threshold required to be considered as torture. ...

While the (European Court of Human Rights) found that the Frankfurt police’s treatment of Gäfgen did constitute “inhuman treatment,” it accepted the Frankfurt District Court’s judgment that under the circumstances this treatment did not warrant punishment.

The compassion shown for the perpetrators in the Frankfurt court’s judgment is striking. In adumbrating the “massively extenuating circumstances” that on its view militated against the application of sanction, it notes that “for both of the accused, it was exclusively and urgently a matter of saving the child’s life.” It is “also to be taken into account,” the Court adds a bit further on, “that g’s [Gäfgen’s] provocative and unscrupulous manner of answering questions had strained the nerves of the investigators to the breaking point (aufs äußerste strapazierte). Trained in law, he knew how to formulate and present his responses, so that they constantly produced doubts, hopes, and disappointments and provided no certainty.” “Moreover,” the Court continues, “the situation was extraordinarily chaotic. The police personnel had been on duty overtime. They were worn out and tired. The accused E. [Ennigkeit] had worked through the night and the accused D. [Daschner] had only slept for a few hours. The overwrought sensibilities of the accused substantially reduces their guilt, since they lowered their inhibitions to acting. Neither man could take any more. Furthermore, both of them had led irreproachable lives up to that point.” And so on.12

One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge “massively extenuating circumstances” in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been “trained in law” is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?

To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd — and for the United States suicidal — logic could only be embraced by persons who are fundamentally committed to seeing American counter-terrorism efforts fail.

During time of war, the Ancient Romans closed the doors of the Temple of Janus, symbolizing the cessation of normal operation of of the Law during war-time.

Barack Obama fought back against Sarah Palin’s convention speech attack yesterday, but just look at Obama’s idea of an effective counter-offense.

Jake Tapper:

“I have said repeatedly that there should be no contradiction between keeping America safe and secure and respecting our Constitution,” Obama said. “During the Republican convention, you remember during the Republican convention, one of them, I don’t know if it was Rudy or Palin … they said, ‘Well, ya know, Sen. Obama is less interested in protecting you from terrorists than … reading them their rights.’”

(It was Palin, who said “Al Qaeda terrorists still plot to inflict catastrophic harm on America—he’s worried that someone won’t read them their rights?”)

“Now, let me say this,” Obama continued, “first of all, you don’t even get to read them their rights until you catch them. So, I don’t know what, they should spend more time trying to catch Osama bin Laden and we can worry about the next steps later. Hah! I mean, seriously! These folks.

“Catch ‘em first!”

Obama said his position on this “has always been clear. It has always been clear. If you’ve got a terrorist, take ‘em out. Take ‘em out. Anybody who was involved in 9/11 –- take ‘em out.”

But, the former constitutional law professor argued, “What I have also said is this: that when you suspend habeas corpus—which has been a principle, dating before even our country, it’s the foundation of Anglo-American law—which says, very simply, if the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ and say, ‘Maybe you’ve got the wrong person.’

“The reason you have that safeguard,” he said, “is because we don’t always have the right person. We don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.

“The reason that you have this principle is not to be soft on terrorism, it’s because that’s who we are,” Obama said as the crowd rose to its feet, applauding. “That’s what we’re protecting. Don’t mock the Constitution! Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up! It’s worked pretty well for over 200 years!

Rather than demonstrating Obama’s appreciation of the American Constitution and its roots in Magna Carta and the English Common Law, Barack Obama is really proving the incapacity of the American liberal establishment, including most conspicuously himself, to understand the most elementary distinctions in law, or to remember as far back in time as Vietnam, Korea, or WWII.

Being liberal means having so little respect for tradition and the past that the current armed conflict must be treated by liberals as if it was the first such crisis in human history. From the liberal perspective (which is shared, I must admit, to a very large extent by the current administration), we must invent new policies and procedures for functioning in time of war. Never before, it seems, in the history of the United States have US forces actually dealt with enemy prisoners or illegal combatants.

Obama, and the rest of the American intelligentsia, is oblivious to the fundamental chasm between domestic civilian life and the very different and distinct regime of war. As the engraving above illustrates, the same distinction long predates habeas corpus, Magna Carta, and the Common Law of England. In the time of the Roman Republic, the principle of Inter arma, silent leges (“The laws are silent during the clash of arms.”) was well understood. The Romans closed the doors of the Temple of Janus during war-time to signal the inaccessibility of divine justice when Roman soldiers were fighting for their fatherland in the field.

No contradiction in supposing that habeas corpus, all the rights and immunities of American citizenship, all the protections of our system of laws, attorney representation and jury trials pertain to enemies of the United States captured overseas bearing arms against US forces and operating in open and flagrant violation of the customs and usages of war?

The notion that latrunculi. armed criminals taken prisoner in the course of their attempting to kill US soldiers, persons representing no country, wearing no uniform, and operating under no lawful authority or command, and routinely violating the laws and customs of war should be considered to have the same rights as a US citizen charged domestically with a crime is completely impractical and totally insane.

Obama’s position is intrinsically self-contradictory. On the one hand, we are apparently perfectly entitled to “take out” Osama bin Laden and persons involved in 9/11. But if US forces reduce to possession alive a bearded jhadi with AK-47 in hand, who moments earlier hurled a grenade at them, it’s time to Mirandize him and give him the phone number of Ron Kubbe. Are we to assume that issues of possible error and uncertainty and all the necessity for proof and assurance required in the case of ordinary illegal combatants vanishes in relation to persons believed to have been “involved” with 9/11?

The University of Chicago Law School should never have hired Obama. His understanding of the limits of the Law is defective, and he is not even sensitive to the grossest sorts of contradiction in his own theory.

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. ...

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

Another satisfied customer of Shearman & Sterling LLP

International Herald-Tribune:

Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

A cousin says Abdullah Saleh al-Ajmi, a Kuwaiti released from Guantanamo in 2005, was reported missing two weeks ago and his family learned of his death Thursday through a friend in Iraq.

The cousin, Salem al-Ajmi, told Al-Arabiya on Thursday that the former detainee was behind the latest attack in Mosul, although he did not provide more details.

Three suicide car bombers targeted Iraqi security forces in Mosul on April 26, killing at least seven people.

Mosul is believed to be the last urban stronghold of al-Qaida in Iraq.

His Wikipedia entry lists the US Military’s Administrative Review Board’s Summary of Evidence

A Summary of Evidence memo was prepared for Abdallah Salih Ali Al Ajmi’s Combatant Status Review Tribunal, on (redacted) . The memo listed the following allegations against him:

The detainee retreated to the Tora Bora region of AF and was later captured as he attempted to escape to Pakistan.

On September 2, 2003 (just under two years after 9/11), four of Shearman & Sterling’s finest Thomas Wilner, Neil H. Koslowe, Kristine A. Huskey, and Heather Lamberg Kafele filed a Petition for writ of Certiorari on behalf of Al Ajmi and eleven others.

Mr. Wilner wrote:

All these prisoners have asked for is a fair hearing, one in which they have the chance to learn the charges against them and to rebut the accusations before a neutral decision maker.”

Subsequently, the prisoner denied everything:

Al Ajmi denied participating in Jihad.

Al Ajmi stated he went to Pakistan to learn and memorize the Koran—he never traveled to Afghanistan.

Al Ajmi denied any contact with the Taliban. He acknowledged that he had previously confessed to the allegations he was being asked to comment on—but those were false confessions:

“These statements were all said under pressure and threats. I couldn’t take it. I couldn’t bare [sic] the threats and suffering so I started saying things. When every detainee is captured they tell him that he is either Taliban or Al-Qaida and that is it. I couldn’t bare [sic] the suffering and threatening and the pressure so I had to say I was from Taliban [sic] .”

Al Ajmi denied participating in military operations against the coalition.

Al Ajmi denied being placed in a defensive position by the Taliban:

“I am not an enemy combatant. I said this only because I was under pressure and threats and suffering.”

In response to the allegation that he admitted spending eight months in the front line at the Aiubi Center in Afghanistan, Al Ajmi responded:

“I never entered Afghanistan. I never fought with anyone. My intentions were to stay four months only but under the circumstances I had to stay for eight months. I never fought. My intentions were never to go to Afghanistan my intentions were to go to Pakistan.”
————————————————————————-

Appearing again before an Administrative Review Board, he responded to board member questions:

Al Ajmi My role was [sic] in this Tabligh [sic] to call people to pray, to do good. To let people know that there is an end to this world so they can pray and do well.

Board Member Is it a religious organization?

Al Ajmi Yes it is.

Board Member Al Ajmi I believe that your dedication to your religion is genuine, what direction or path will that dedication take should you be released?

Al Ajmi For peace.

————————————————————————-

Al Ajmi was repatriated to Kuwait November 3, 2005, where he was freed on bail, while he awaited trial. His trial began in March 2006, and he and five others were acquitted on July 22, 2006.

On April 26, in Mosul, seven members of the Iraqi security forces were killed by suicide car bombing, thus proving the excellence of the legal services provided by leading American law firms like Shearman & Sterling.

————————————————————————-

Hat tip to Major DRH.

Baltimore Sun:

Part 1

Part 2

Sample (from Part 1): On why Due Process is not applicable to war-time military operations:

The strictures that bind the Executive in its role as a magistrate enforcing the civil laws have no place in constraining the President in waging war:

Soldiers regularly in the service have the license of the government to deprive men,the active enemies of the government, of their liberty and lives; their commission so to act is as perfect and legal as that of a judge to adjudicate …. Wars never have been and never can be conducted upon the principle that an army is but a posse comitatis ofa civil magistrate..

Military Commissions, 11 Op.Att’y Gen. 297, 301-02 (1865) (emphasis added); see also The Modoc Indian Prisoners, 14 Op. Att’y Gen. 249, 252 (1873) (“it cannot be pretended that a United States soldier is guilty of murder if he kills a public enemy in battle, which would be the case if the municipal law was in force and, applicable to an· act committed under such circumstances”).. As Attorney General Speed conciuded, the Due Process Clause has no application to the conduct of a military campaign:

That portion of the Constitution which declares that ‘no person shall be deprived… of his life,liberty, or property without due process of law,’ has such direct reference to, and connection with, trials for crime or criminal prosecutions that comment upon it would seem to be unnecessary. Trials for offences against the laws of war are not embraced or intended to be embraced in those provisions…. The argument that flings around offenders against the laws of war these guarantees of the Constitution would convict all the soldiers of our anny of murder; no prisoners could be taken and held; the anny could not move. The absurd consequences that would of necessity flow from .such an argument show that it cannot be the true construction-it cannot be what was intended by the framers of the instrument. One of the prime motives for the Union and a federal government was to confer the powers of war. If· any provisions of the .. Constitution are so in conflict with the power to carry on war as to destroy and make it valueless, then the instrument,instead of being a great and wise one, is a miserable failure “a felo de se.”

I thought it was a fine piece of work, placing the issues in the correct historical perspective, citing proper precedents, and arriving at just and accurate conclusions. The Bush Administration ought to have released it immediately upon its production, and staunchly publicly defended it.

Alex Gibney (William Sloane Coffin’s stepson) sporting orange ribbon

The Washington Post reports on Tinseltown’s latest de rigeur fashion accessory seen everywhere at the recent Academy Awards celebration.

There was a dollop of politics. When Alex Gibney won for his documentary “Taxi to the Dark Side,” about the use of torture in the war on terror, the director said he made it to honor his father, a former Navy interrogator, who was outraged at abuses revealed at Abu Ghraib and Guantanamo. “Let’s hope we can turn this country around and move from the dark side to the light,” Gibney said.

Out on the red carpet, Paul Haggis (the director whose “Crash” won Best Picture in 2006) said he didn’t know what accounts for all these deeply dark, brooding, troubled films. But isn’t it obvious, he asked, flashing an orange ribbon on his lapel. Orange, why orange? “It’s Guantanamo,” his Max Azria-clad wife, Deborah, said, showing off her orange bracelet, which read: “Silence + torture = complicity.” Suddenly, we noticed—orange ribbons and bracelets everywhere.

Paul Haggis & Deborah Rennard

79-year-old Bay Area Congressman Tom Lantos is unfortunately a moderate liberal and a democrat, but he is also a Holocaust survivor and a refugee from Hungarian Communism.

AP reports that some visiting leftwing Dutch legislators recently tried telling him that the US should close its Guantanamo Bay internment facility, and Tom Lantos put them in their place.

Dutch lawmakers who visited the Guantanamo Bay military prison this week said they were offended by a testy exchange in Washington with a senior congressional Democrat.

The lawmakers said that Rep. Tom Lantos, D-Calif., chairman of the House Foreign Affairs Committee, told them that “Europe was not as outraged by Auschwitz as by Guantanamo Bay.”

Lantos, a Holocaust survivor, was responding to arguments that the United States should shut down the prison, located on a U.S. naval base in Cuba, the lawmakers said. Mariko Peter, a member of the Dutch Green Party, who began the exchange with Lantos, said she took notes of the remarks. ...

Before the Guantanamo exchange, the lawmakers had discussed a debate in the Netherlands about whether the country should maintain its 1,600 troops serving in NATO’s Afghanistan operations.

“You have to help us, because if it was not for us you would now be a province of Nazi Germany,” Lantos said, according to the Dutch lawmakers.

“The comments killed the debate,” said Harry van Bommel, a member of the Socialist Party. “It was insulting and counterproductive.”

There are times one really wishes Tom Lantos was a Republican.

Abdullah Mehsud aka Noor Alam

AFP details the unhappy end of one of the innocent lambs unjustly detained by the Bush Administration. Poor Abdulah Mehsud was captured at Kunduz in Northern Afghanistan in December of 2001 and detained for 25 months before being released in March of 2004.

A former Guantanamo Bay prisoner wanted for the 2004 kidnapping of two Chinese engineers in Pakistan blew himself up with a grenade during a clash with (Pakistani) security forces on Tuesday, officials said.

One-legged Taliban militant Abdullah Mehsud killed himself to avoid capture after troops raided his hideout, interior ministry spokesman Brigadier Javed Cheema told AFP. ...

“Abdullah Mehsud blew himself up with a grenade and died when security forces raided his hideout. Three of his accomplices were arrested,” Cheema said.

Mehsud, 32, became the leader of Pakistani Taliban insurgents based in South Waziristan in 2004, after Pakistani forces launched military operations in the troubled tribal region.

In October 2004, Islamic militants led by Mehsud pressed their demand for an end to the army moves by kidnapping two Chinese engineers working on a multi-million-dollar hydroelectric dam project in South Waziristan.

One of the hostages died in a botched rescue bid in a major embarrassment for Pakistan, which counts China as its closest ally and biggest military supplier.

Mehsud, who spent 25 months in the US-run “war on terror” prison at Guantanamo Bay in Cuba until his release in March 2004, escaped after the incident.

He had been hunted by Pakistani forces ever since. Officials said he had recently been involved in lauching cross-border attacks on NATO and US-led forces in Afghanistan.

“Intelligence reports pointed out his presence at a house and security forces mounted the raid. He sneaked into Zhob from Waziristan,” Cheema said.

Zhob, in southwestern Baluchistan province, borders South Waziristan.

The militant leader and his companions exchanged heavy gunfire with security forces for hours after the house was surrounded late Monday, police said.

“When our forces finally entered before dawn this morning a man blew himself up to avoid being captured. He was identified later as Mehsud,” Zhob police chief Atta Mohammad said.

Six leading liberal international do-gooder organizations, including Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice and NYU School of Law, Human Rights Watch and Reprieve, have issued a report titled Off the Record, which allegedly identifies 39 individuals secretly detained in the War Against Terror.

The list, compiled on the basis of public sources, government officials (i.e., Pouting and Leaking Spooks), and witness interviews, includes: “off the Record”

Individuals whose detention by the United States has been officially acknowledged and whose fate and whereabouts remain unknown:

1.Hassan Ghul

2.Ali Abd al-Rahman al-Faqasi al-Ghamdi (Abu Bakr al Azdi)

3.Ali Abdul-Hamid al-Fakhiri (Ali Abd-al-Hamid al-Fakhiri, Ibn al-Shaykh al-Libi)

Individuals about whom there is strong evidence, including witness testimony, of secret detention by the United States and whose fate and whereabouts remain unknown:

4.Mustafa Setmariam Nasar (Abu Musab al-Suri, Umar Abd al-Hakim)

5.& 6. Two, possibly three, Somalis [Names Unknown] (one of whom is either Shoeab as-Somali or Rethwan as-Somali)

7.Mohammed Naeem Noor Khan (Abu Talha, Talaha)

8.Abdul Basit

9.Adnan [Last Name Unknown]

10.Hudaifa

11.Mohammed [Last Name Unknown] (Mohammed al-Afghani)

12.Khalid al-Zawahiri

13.Ayoubal-Libi

14.Abu Naseem

15.Suleiman Abdalla Salim (Suleiman Abdalla, Suleiman Abdalla Salim Hemed, Suleiman Ahmed Hemed Salim, Issa Tanzania)

16.Yassir al-Jazeeri (Yasser al-Jaziri, Abu Yasir al-Jaziri, Abu Yassir Al Jazeeri, Yasser al-Jazeeri)

17.Mohammed Omar Abdel-Rahman (Asadallah)

18.Majid [Last Name Unknown] (Adnan al-Libi, Abu Yasser)

19.Hassan [Last Name Unknown] (Raba’i)

20.[First Name Unknown] al-Mahdi-Jawdeh (Abu Ayoub, Ayoub al-Libi)

21.Khaled al-Sharif (Abu Hazem)*

Individuals about whom there is some evidence of secret detention by the United States and whose fate and whereabouts remain unknown:

22.Osama bin Yousaf (Usama Bin Yussaf, Usama bin Yusuf, Usamah bin-Yusuf)

23.Osama Nazir

24.Sharif al-Masri (Abd-al-Sattar Sharif al-Masri)

25.Qari Saifullah Akhtar (Amir Harkat-ul-Ansar Qari Saifullah)

26.Mustafa Mohammed Fadhil (Moustafa Ali Elbishy, Hussein, Hassan AH, Khalid, Abu Jihad)

27.Musaab Aruchi (Mosabir Aroochi, Masoob Aroochi, Abu Mosa’ab al-Balochi, Abu Mosa’ab Aroochi, Musaad Aruchi, al-Baluchi)

28.Ibad Al Yaquti al Sheikh al Sufiyan

29.Walid bin Azmi

30.Amir Hussein Abdullah al-Misri (Fazal Mohammad Abdullah al-Misri)

31.Safwan al-Hasham (Haffan al-Hasham)

32.Jawad al-Bashar

33.Aafia Siddiqui

34.Saif al Islam el Masry

35.Sheikh Ahmed Salim

36.Retha al-Tunisi

37.Anas al-Libi (Anas al-Sabai, Nazih al-Raghie, Nazih Abdul Hamed al-Raghie)

38.[First Name Unknown] al-Rubaia

39.Speen Ghul

Flushed with self-importance, these enlightened organizations proceed to issue a series of “recommendations,” which are really demands.

The United States must cease use of secret or unacknowledged detention.

For those individuals currently detained by or at the direction of the United States, the United States and relevant foreign governments must:

Make known the names and whereabouts of detainees;

Provide immediate access by the International Committee of the Red Cross (ICRC) to all detainees the organization seeks to visit;

Charge detainees with a recognizable criminal offense and promptly bring them to trial before a court that meets international fair trial standards or release them;

and Allow detainees access to lawyers and to communicate with family members.

The United States must not detain family members of terrorism suspects based on their family relationships.

The United States must make known the names, fate, and whereabouts of all individuals it has detained in the “War on Terror,” even if they have been released, transferred to the custody of another state, or are dead.

The United States must provide reparations, including compensation, to individuals it has secretly detained.

Other governments must not facilitate secret detention: they should not assist or cooperate in secret detention operations, and should disclose information about such operations that comes into their possession.

Brad Warbiany has been reading liberal journalists and democrats, and (worse!) taking their nonsense seriously.

Brad writes:

Fear has become the name of the political game, and the stakes are high. Unlike World War II, we’re not asked to ration sugar or observe meatless meals. Instead, we’re asked to suspend habeas corpus, willingly submit to National Security Letters and warrantless domestic wiretapping. Of course, we’re asked to provide implicit trust to the government to faithfully protect us, while acting as watchdogs to snitch on our untrustworthy family, friends, and neighbors at the first sign of wrongdoing. We’re watching as crucial controls on government, going back to the Magna Carta in 1215, are being removed…

There was never, ever any occasion from 1215 to the present day, in which prisoners of war had the benefit of habeas corpus. Still less, spies, saboteurs, and other illegal combatants, who did not even enjoy the privileges and immunities associated with the status of prisoner of war, and who were traditionally executed out of hand, by hanging.

What should still be regarded as determinative is the Supreme Court’s decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), which held:

Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments. …

But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act. …

If this [Fifth] Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. …

We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

Brad Warbiany continues:

The time comes that I have to ask myself a simple question: Is it worth it?

What level of uncertainty of a terrorist attack should we allow in our lives in order to be certain that we’re not subjects of a police state? It has become a sad state of affairs when I’m more concerned that the actions of my own government will cause me trouble than the actions of extremists who have sworn an intent to kill me. In a world where we’re asked to submit to intrusive surveillance on a daily basis, and further to do so gladly and “for our own protection”, I wonder if it wouldn’t be better to simply take my chances without their blanket of security?

Might there be better ways of reducing terrorism than turning our own country into a prison, while engaging in a foreign policy which causes those who didn’t hate us 5 years ago to start? Nearly 40 years of effort have proven that our tactics in fighting a war on drugs have proven futile and counterproductive, while damaging American society in the process. Should we take a step back and evaluate whether our tactics fighting international terrorism have been futile and counterproductive, while damaging American society in the process?

“Turning our own country into a prison” is just a bit of an exaggeration, is it not?

What intrusive surveillance has the gentleman experienced? I wonder, outside the revolting and irrational practices of airline security, which have gotten worse recently, but which long predate 9/11 and the current administration, going back to the 1960s when Castro’s Cuban regime initiated the practice of airline hijacking.

The government is widely believed to be practicing some forms of mechanical surveillance, data-mining electronic and telephonic communications, in search of messages transmitted between terrorists.

This sort of thing has been going on for a very long time, all the way back to the WWII era, when the predecessor agency of the NSA was opening every telegram.

In 1945 Project SHAMROCK was initiated to obtain copies of all telegraphic information exiting or entering the United States. With the full cooperation of RCA, ITT and Western Union (representing almost all of the telegraphic traffic in the US at the time), the NSA’s predecessor and later the NSA itself were provided with daily microfilm copies of all incoming, outgoing and transiting telegraphs.

Are either Mr. Warbiany or myself really inconvenienced by the NSA’s Echelon program datamining our emails, presumably in search of such obvious giveaway signals as the presence of provocative texts like “Allahu Akhbar!”, “the anthrax is on the way,” or “the nuclear bomb goes off at noon”? Our emails are, in a sense, “read” by machines already simply in the process of being transmitted across the Net.

Do I really even care if some clerical employee pulls my sarcastic “Allahu Akhbar!” email out of the pile, and eyeballs it for a fraction of a second? Not much. In fact, a lot less than I like having to remove my shoes at the airport.

It is somewhat difficult for those of us on the sidelines to evaluate sensibly the necessity and propriety of the secret operations of our intelligences services in time of war. We do know, however, that no successful incident of mass terrorism has taken place on US soil since 9/11, and we have good reason to believe that there are a lot of people trying. So somebody, somewhere, must be doing something right.

As to international opinion, what can one expect? The international leftwing intelligentsia, and its media outlets, have always hated the United States. They hate the United States more vigorously when the United States actually does something in the world, it’s true. But it would be insane to base US foreign policy upon the preferences and desires of our rivals and adversaries, on the one hand; and even worse to base it upon the goofy and pernicious world view of the international community of leftist bien pensants on the other.

KSM tells a story exculpating some Guantanamo detainees, which could conceivably be true.

I’m asking you to be fair with Afghanis and Pakistanis and many Arabs which been in Afghanistan. Many of them been unjustly. The funny story they been Sunni government they sent some spies to assassinate UBL then we arrested them sent them to Afghanistan/Taliban. Taliban put them into prison. Americans they came and arrest them as enemy combatant. They brought them here. So, even if they are my enemy but not fair to be there with me.

Khalid Shaikh Mohammed in pre-capture days

In addition to his confession (published below), the DOD transcript contains a final statement by Khalid Shaikh Mohammed amounting to an apologia and justification.

KSM (through translator):

In the name of God the most compassionate, the most merciful, and if any fail to retaliation by way of charity and. I apologize. I will start again. And if any fail to judge by the light of Allah has revealed, they are no better than wrong doers, unbelievers, and the unjust.

KSM:

For this verse, I not take the oath. Take an oath is a part of your Tribunal and I’ll not accept it. To be or accept the Tribunal as to be, I’ll accept it. That I’m accepting American constitution, American law or whatever you are doing here. This is why religiously I cannot accept anything you do. Just to explain for this one, does not mean I’m not saying that I’m lying. When I not take oath does not mean I’m lying. You know very well peoples take oath and they will lie. You know the President he did this before he just makes his oath and he lied. So sometimes when I’m not making oath does not mean I’m lying.

KSM:

What I wrote here, is not I’m making myself hero, when I said I was responsible for this or that. But your are military man. You know very well there are language for any war. So, there are, we are when I admitting these things. I’m not saying I’m not did it. I did it but this the language of any war. If America they want to invade Iraq they will not send for Saddam roses or kisses they send for a bombardment. This is the best way if I want. If I’m fighting for anybody admit to them I’m American enemies. For sure, I’m American enemies. Usama bin Laden, he did his best press conference in American media. Mr. John Miller he been there when he made declaration against Jihad, against America. And he said it is not no need for me now to make explanation of what he said but mostly he said about American military presence in Arabian peninsula and aiding Israel and many things. So when we made any war against America we are jackals fighting in the nights. I consider myself, for what you are doing, a religious thing as you consider us fundamentalist. So, we derive from religious leading that we consider we and George Washington doing same thing. As consider George Washington as hero. Muslims many of them are considering Usama bin Laden. He is doing same thing. He is just fighting. He needs his independence. Even we think that, or not me only. Many Muslims, that al Qaida or Taliban they are doing. They have been oppressed by America. This is the feeling of the prophet. So when we say we are enemy combatant, that right. We are….

The way of the war, you know, very well, any country waging war against their enemy the language of the war are killing. If man and woman they be together as a marriage that is up to the kids, children. But if you and me, two nations, will be together in war the others are victims. This is the way of the language. You know 40 million people were killed in World War One. Ten million kill in World War. You know that two million four hundred thousand be killed in the Korean War. So this language of the war. Any people who, when Usama bin Laden say I’m waging war because such such reason, now he declared it. But when you said I’m terrorist, I think it is deceiving peoples. Terrorists, enemy combatant. All these definitions as CIA you can make whatever you want. Now, you told me when I ask about the witnesses. I’m not convinced that this related to the matter. It is up to you. Maybe I’m convinced but your are head and he [gesturing to Personal Representative] is not responsible, the other, because your are head of the committee. So, finally it’s your war but the problem is no definitions of many words. It would be widely definite that many people be oppressed. Because war, for sure, there will be victims. When I said I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and the kids. Never Islam are, give me green light to kill peoples. Killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exception of rule when you are killing people in Iraq. You said we have to do it. We don’t like Saddam. But this is the way to deal with Saddam. Same thing you are saying. Same language you use, I use. When you are invading two- thirds of Mexican, you call your war manifest destiny. It up to you to call it what you want. But other side are calling you oppressors. If now George Washington. If now we were living in the Revolutionary War and George Washington he being arrested through Britain. For sure he, they would consider him enemy combatant. But American they consider him as hero. This right the any Revolutionary War they will be as George Washington or Britain. So we are considered American Army bases which we have from seventies in Iraq. Also, in the Saudi Arabian, Kuwait, Qatar, and Bahrain. This is kind of invasion, but I’m not here to convince you. Is not or not but mostly speech is ask you to be fair with people. I’m don’t have anything to say that I’m not enemy. This is why the language of any war in the world is killing. I mean the language of the war is victims. I don’t like to kill people. I feel very sorry they been killed kids in 9/11. What I will do? This is the language. Sometime I want to make great awakening between American to stop foreign policy in our land. I know American people are torturing us from seventies. [REDACTED] I know they talking about human rights. And I know it is against American Constitution, against American laws. But they said every law, they have exceptions, this is your bad luck you been part of the exception of our laws. They got have something to convince me but we are doing same language. But we are saying we have Sharia law, but we have Koran. What is enemy combatant in my language?

KSM:

Allah forbids you not with regards to those who fight you not for your faith nor drive you out of your homes from dealing kindly and justly with them. For Allah love those who are just. There is one more sentence. Allah only forbids you with regards to those who fight you for your faith and drive you out of your homes and support others in driving you out from turning to them for friendship and protection. It is such as turn to them in these circumstances that do wrong.

KSM:

So we are driving from whatever deed we do we ask about Koran or Hadith. We are not making up for us laws. When we need Fatwa from the religious we have to go back to see what they said scholar. To see what they said yes or not. Killing is prohibited in all what you call the people of the book, Jews, Judaism, Christianity, and Islam. You know the Ten Commandments very well. The Ten Commandments are shared between all of us. We all are serving one God. Then now kill you know it very well. But war language also we have language for the war. You have to kill. But you have to care if unintentionally or intentionally target if I have if I’m not at the Pentagon. I consider it is okay. If I target now when we target in USA we choose them military target, economical, and political. So, war central victims mostly means economical target. So if now American they know UBL. He is in this house they don’t care about his kids and his. They will just bombard it. They will kill all of them and they did it. They kill wife of Dr. Ayrnan Zawahiri and his two daughters and his son in one bombardment. They receive a report that is his house be. He had not been there. They killed them. They arrested my kids intentionally. They are kids. They been arrested for four months they had been abused. So, for me I have patience. I know I’m not talk about what’s come to me. The American have human right. So. enemy combatant itself, it flexible word. So I think God knows that many who been arrested, they been unjustly arrested. Otherwise, military throughout history know very well. They don’t war will never stop. War start from Adam when Cain he killed Abel until now. It’s never gonna stop killing of people. This it the way of the language. American start the Revolutionary War then they starts the Mexican then Spanish War then World War One, World War Two. You read the history. You know never stopping war. This is life. But if who is enemy combatant and who is not? Finally, I finish statement. I’m asking you to be fair with other people.

PRESIDENT:

Does that conclude your statement, Khalid Sheikh Muhammad?

KSM:

Yes.

PRESIDENT:

Alright.