Another Falsehood Exposed
By Dan Froomkin, Special to washigntonpost.com
Friday, November 21, 2008; 12:41 PM
LINK

When and if the curtain is fully pulled back on President Bush's "war on terror," how much of what he said will turn out to be true, and how much of it will turn out to be fantasy and lies?

The more we learn, the more it seems the appeals to fear that Bush used to rally the nation behind him were unfounded.

The latest example came yesterday in a federal courtroom in Washington, where a Bush-appointed judge ordered the release of five Algerian men who had been held at the Guantanamo Bay detention camp for almost seven years.

The president showcased the men in his seminal, bellicose 2002 State of the Union speech as part of a litany of alleged threats -- some averted, some not -- facing the nation. "Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy," Bush said at the time.

But once detainees were given the right to challenge their detention, the government dropped the embassy allegation.

This was presumably because there was even less evidence to support it than the remaining charges -- which the judge yesterday disclosed consisted of one unsubstantiated allegation by an unnamed source of undetermined credibility.

The Coverage

William Glaberson (see article below - Editor) writes in the New York Times: "A federal judge issued the Bush administration a sharp setback on Thursday, ruling that five Algerian men have been held unlawfully at the Guantánamo Bay detention camp for nearly seven years and ordering their release.

"It was the first hearing on the government's evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government's secret evidence in the case had been weak: what he described as 'a classified document from an unnamed source' for its central claim against the men, with little way to measure credibility.

"'To rest on so thin a reed would be inconsistent with this court's obligation,' Judge Leon said."

The men were "among a group of Guantánamo inmates who won a 5-to-4 Supreme Court ruling in June that the detainees had a constitutional right to seek their release in federal court. The decision said a 2006 law unconstitutionally stripped them of their right to contest their imprisonment in habeas corpus lawsuits. . . .

"Robert C. Kirsch, one of the six detainees' lawyers from the law firm Wilmer Hale, said the case showed 'the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.' . . .

"'The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based -- slim evidence of dubious quality,' said Zachary Katznelson, legal director at Reprieve, a British legal group that represents detainees."

Del Quentin Wilber writes in The Washington Post: "In an unusual moment, [Leon] also pleaded with Justice Department lawyers not to appeal his order, noting that the men have been imprisoned since shortly after the attacks of Sept. 11, 2001.

"'Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough,' he said. He urged the government 'to end this process.' . . .

"Legal scholars and lawyers representing detainees said the ruling is the latest setback for the Bush administration's legal battle over the rights of the detainees. Leon, an appointee of President Bush, had been viewed by many as sympathetic to government arguments. He ruled in 2005 that the detainees did not have grounds to contest their detentions in his court. That was the decision the Supreme Court reversed in June.

"'For a judge like Leon to order their release from detention is significant because the government has long maintained the evidence it had was more than sufficient to justify the detentions,' said Scott L. Silliman, a national security law professor at Duke University. 'This is a clear warning shot to the government. . . . These are probably not the last detainees to be ordered released.'"

David G. Savage writes in the Los Angeles Times: "Civil libertarians said Thursday's decision confirmed what the Bush administration's critics had long assumed -- that the cases against the Guantanamo prisoners would not stand up if they were examined by an independent judge.

"'For seven years, the Bush administration sought to avoid the courts because it had no evidence and sought instead to create a lawless prison,' said Vincent Warren, executive director of the Center for Constitutional Rights. 'We must note that justice here, however, comes seven years too late.'"

It's also worth noting that just last month, Laura Rozen blogged for Mother Jones about what she called a "potentially explosive" court filing by the lawyers for the Algerians, suggesting "that the Bush administration ordered the Bosnian government to arrest and hold the men after an exhaustive Bosnian investigation had found them innocent of any terrorism related activity and had ordered their release, in order to use them as props in Bush's January 2002 State of the Union speech."

Opinion Watch

Glenn Greenwald blogs for Salon: "The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong. If the members of Congress who voted for the Military Commissions Act had their way.., or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus. "

"Enough," says the Washington Post editorial board. "Judge Leon . . . delivered a forceful indictment of the administration's detention decisions and provided indisputable proof of the importance of allowing federal judges to evaluate the secret evidence the government used to justify detentions. . . .

"[W]hat Judge Leon revealed in his ruling is the utter travesty that is holding people with virtually no evidence -- and certainly no evidence that can reasonably be considered reliable.

By contrast, Benjamin Wittes writes in a Washington Post op-ed that the decision to close Guantanamo shouldn't be made in haste. He says the issues raised are complex and involve a "tension between America's needs and her values." Anyone who doesn't agree, he writes, "does an injustice to the outgoing administration, many current and former members of which have struggled with these questions over seven long years."

And in a Wall Street Journal op-ed, Attorney General Michael Mukasey deplores yesterday's verdict, while obliquely suggesting that "lacking clear protections for classified information, we have found at times that we are simply unable to provide our best evidence to the court."

Vacuum of Leadership

Two months suddenly seems like a very long time, doesn't it?

Paul Krugman writes in his New York Times opinion column about the "power vacuum" at the height of a serious economic crisis -- the product of an outgoing administration with "no credibility," and incoming administration with "no authority" and an "ideological chasm between the two sides . . . too great to allow concerted action. . . .

"How much can go wrong in the two months before Mr. Obama takes the oath of office? The answer, unfortunately, is: a lot. Consider how much darker the economic picture has grown since the failure of Lehman Brothers, which took place just over two months ago. And the pace of deterioration seems to be accelerating. . . .

"(E)conomic policy, rather than responding to the threat, seems to have gone on vacation. In particular, panic has returned to the credit markets, yet no new rescue plan is in sight. On the contrary, Henry Paulson, the Treasury secretary, has announced that he won't even go back to Congress for the second half of the $700 billion already approved for financial bailouts. And financial aid for the beleaguered auto industry is being stalled by a political standoff.

"How much should we worry about what looks like two months of policy drift? At minimum, the next two months will inflict serious pain on hundreds of thousands of Americans, who will lose their jobs, their homes, or both. What's really troubling, however, is the possibility that some of the damage being done right now will be irreversible."

Joe Klein blogs for Time: "The problem is that nothing of significance can or will happen until the new President takes office in January, even though there is -- finally -- a great appetite for action in Washington. This is going to be a very frustrating few months. All of a sudden we understand how our grandparents felt in the winter of 1932-3, waiting for Franklin Roosevelt -- and why the inauguration was moved up from March 4 to January 20 thereafter.

"Barack Obama's desire to keep a low profile while he fleshes out his Administration is understandable, but frustrating all the same. And George W. Bush's blatant diffidence is annoying, too--not that he has even the tiniest shred of credibility left, but it would be nice if he sort of tried to say or do something comforting in these bleak days. Stripped of bluster, he has become a cipher. So we're left with a void at the top at a moment of real national anxiety. History has resumed, but time seems to have frozen to a dead stop. 2009 can't come soon enough."

William Neikirk blogs for Tribune: "The time has come to take another look at the 20th amendment to the U.S. constitution that established Jan. 20 as the date for newly elected presidents to take office.

"President-elect Barack Obama is having to wait more than two months before taking charge as the worst economic crisis since the Great Depression rages. . . .

"Before the 20th amendment was adopted in the 1930s, presidents took office in March. That was clearly too long. Now, in a 24-hour news cycle and a globalized world where communications flash around the planet in seconds, the Jan. 20 date seems obsolete, too."

University of Texas law professor and blogger Sandy Levinson has been making that argument for a while now.

What do you think? What's the optimal amount of time to pass between Election Day and Inauguration Day? And in the meantime, should Bush volunteer to turn over any of his powers to Obama before January 20? Come share your views here. (I've got a new discussion group called White House Watchers.)

Nothing Doing

The lame-duck Congress -- though as David M. Herszenhorn writes in the New York Times, calling it lame may be overly generous -- sent Bush only one relevant bill.

Jennifer Loven writes for the Associated Press: "The White House says President Bush signed into law a bill that Congress approved to keep unemployment checks flowing to jobless Americans through the holiday season.

"Bush signed the bill at the White House just before boarding Marine I Friday morning for a short trip to Andrews Air Force Base and a flight to Lima, Peru, to attend the 21-nation Asia-Pacific Economic Cooperation forum. . . .

"Earlier in the year, Bush expressed doubts about further benefit extensions, but he came to support the legislation as new figures showed new claims for jobless aid had reached a 16-year high."

The Lame Duck Trip

Bush is off to Lima for what could be his final overseas trip as president. Expectations are low.

David Alexander writes for Reuters: "Experts said the meeting of the Asia Pacific Economic Cooperation forum in Lima, Peru, was unlikely to produce any major breakthroughs, but U.S. officials rejected characterization of the session as a swan song for a lame-duck president with low approval ratings.

"'This is a serious meeting,' said Daniel Price, Bush's adviser on international economic affairs, noting that the president's long advocacy of free trade and open markets meshed well with APEC's core mission. 'I don't think this is a farewell . . . but rather an opportunity for the president to continue to carry forward an affirmative agenda.'"

Martin Crutsinger writes for the Associated Press that "the White House insists that it is pursuing the right course and believes that enlisting more countries' endorsement of the G-20 action plan will eventually work at restoring market stability."

State of Denial

Asked about his relations with Latin America in an interview with Peruvian television reporter Raul Tola yesterday, Bush simply denied there were any problems.

Tola: "Sometimes it's said that at the beginning of your administration you were very interested in building up a strong relationship with Latin America, but 9/11 changed the priorities for the United States."

Bush: "Yes."

Tola: "Is it true?"

Bush: "No, it really isn't."

Then Tola asked whether inattention to Latina America hadn't "empowered some political tyrants, like President Chavez."

Bush: "Yes. No, I strongly disagree with that. I can understand pundits -- there's a lot of pundits everywhere, but I believe that our policies have obviously set a different example of what's available for people. And ours is a country that believes strongly in social justice. We believe good societies must have educated people. It's hard to be hopeful if there's not good health. And finally, ours is a country that promoted free and fair trade, which is the best way to help nations develop their economies. I mean, in other words, you're a Peruvian farmer, you'd like to be selling into U.S. markets, and -- because it's a big market. Nothing wrong with selling in the Peruvian market, or in countries bordering Peru, or throughout South America. But also, it gives you an option to sell into U.S. markets. And that's the best way to help people make a living.

"And we have -- obviously there's a philosophical difference of opinion. And the only thing the United States tries to do is to show the human side of the philosophy that most leaders embrace, which is freedom, free markets, free trade, and social justice."

Bush also summed up his tenure this way: "I've worked hard on a lot of fronts. I think America is more secure now than it was. Democracy is more vibrant in parts of the world that didn't see democracy. Trade is -- agreements are more abundant now. I have given it my all. And now I am very hopeful that the man who succeeds me as President of the United States succeeds in his job."

The Snub That Wasn't

Making the rounds of the Internet, this video shows Bush apparently getting snubbed by other world leaders at the picture-taking for the G20 summit last weekend.

Here's Rick Sanchez narrating it for CNN: "Look at this. This is the president of the United States walking out on stage to take a picture with world leaders invited to the G20 summit over the weekend. Look at him. And he seems like the most unpopular kid in high school that nobody liked -- you know, the one with the cooties?

"Everybody's shaking hands but he walks in and nobody's shaking his hand and he's not shaking anybody's hand."

But as Jeanne Moos now reports for CNN: "It turns out the president had already shaken everybody's hand earlier that same day. In fact he'd shaken most of their hands twice -- starting the day before . . . whereas the other leaders had not had an opportunity to greet each other yet that morning."

Rulemaking Watch

Juliet Eilperin writes in The Washington Post: "The Bush administration is finalizing changes to the Endangered Species Act that would ensure that federal agencies would not have to take global warming into account when assessing risks to imperiled plants and animals. . . .

"The main purpose of the new regulations, which were first unveiled in August, is to eliminate a long-standing provision of the Endangered Species Act that requires an independent scientific review by either the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration of any federal project that could affect a protected species. Under the administration's proposal, individual agencies could decide on their own whether a project would harm an imperiled species.

"The latest version of the rule goes further than the language Interior Secretary Dirk Kempthorne issued in August by explicitly excluding climate change from the factors that would trigger an interagency consultation. The move is significant because the administration has listed polar bears as a threatened species under the act on the grounds that their sea-ice habitat is shrinking, but Kempthorne has repeatedly argued that this move should not trigger a federal curb on greenhouse gas emissions linked to the melting of sea ice."

But wait. Didn't I just write in yesterday's column that if a rule isn't finalized by today, then it can be wiped away with a stroke of the new president's pen? Well, there's a loophole.

Jim Tankersley writes in the Los Angeles Times: "Obama can summarily reverse anything not enacted by the time he takes office, a lesson Bush learned by blocking several of Clinton's last-ditch environmental measures, such as a ban on road-building in national forests. . . .

"Under federal rules, it takes 60 days to enact an economically 'significant' regulation, which carries an estimated impact of $100 million or more. Other regulations take 30 days. Today is the deadline for 'significant' regulation."

Eilperin explains: "Interior has classified the [endangered species] proposal as 'a minor rule,' which means the government has determined that it would not have a major economic impact. It will take effect 30 days after being published in the Federal Register."

Tankersly also notes: "Researchers who track 'midnight regulations' say Bush pushed 53 of them through the federal Office of Information and Regulatory Affairs in the last three weeks, nearly double the pace of Clinton at this point in his final year."

Iraq Watch

Aws Qusay writes for Reuters: "Followers of Shi'ite cleric Moqtada al-Sadr marched on Friday against a pact letting U.S. forces stay in Iraq until 2011, toppling an effigy of President George W. Bush where U.S. troops once tore down a statue of Saddam Hussein. . . .

"In Firdos Square, the Sadrist protesters erected an effigy of the outgoing U.S. president, carrying a briefcase with the words 'The pact of subservience and shame'. They hurled bottles at the effigy, toppled it, tore it to pieces and set it on fire.

"'I am with you in evicting the occupier any way you see fit,' a white-turbaned cleric read out to the demonstrators in a message from Sadr, to shouts of 'God is Great' from the crowd."

Mukasey Watch

Lara Jakes Jordan and Matt Apuzzo write for the Associated Press: "Attorney General Michael Mukasey was conscious and alert early Friday -- and took a get-well call from President Bush -- just hours after he collapsed during a speech to a black-tie dinner.

"White House press secretary Dana Perino sent out word to reporters that Bush telephoned his attorney general just before 7 a.m. EST Friday and said that Mukasey 'sounded well and is getting excellent care.' . . .

"Mukasey opened his speech on terrorism with a wry remark about expecting the mood at the conservative Federalist Society dinner to be 'somber or sober.' He slumped over the podium about 15 minutes later and could be seen swaying and shaking slightly just before he collapsed."

Pardon Watch

CBC News reports: "Deposed media baron Conrad Black is hoping George W. Bush will grant him clemency during the U.S. president's final weeks in office.

"The Department of Justice in Washington has confirmed that Montreal-born Black requested that his 6½-year sentence be commuted."

Cheney Watch

Christopher Sherman writes for the Associated Press: "Lawyers seeking to halt the indictments brought against Vice President Dick Cheney, former Attorney General Alberto Gonzales and others are accusing the prosecutor of trying to end his tenure with a bang and even scores with political enemies."

The Guantanemo Docket -The 6 Algerians
Sabir Mahfouz Lahmar
Mustafa Ait Idr
Bensayah Belkacem
Mohammed Nechle
Lakhdar Boumediene
Boudella al Hajj
The People's Vote

November 21, 2008
Judge Declares Five Detainees Held Illegally
By WILLIAM GLABERSON, NY TIMES

A federal judge issued the Bush administration a sharp setback on Thursday, ruling that five Algerian men have been held unlawfully at the Guantánamo Bay detention camp for nearly seven years and ordering their release.

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as “a classified document from an unnamed source” for its central claim against the men, with little way to measure credibility.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” Judge Leon said. He urged the government not to appeal and said the men should be released “forthwith.”

The habeas corpus case was an important test of the administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with hardened fighters and terrorist commanders.

The judge also ruled that a sixth Algerian man was being lawfully detained because he was a facilitator for Al Qaeda, arranging travel for others to fight the United States, and planned to become a fighter himself.

The six men are among a group of Guantánamo inmates who won a 5-to-4 Supreme Court ruling in June that the detainees had a constitutional right to seek their release in federal court. The decision said a 2006 law unconstitutionally stripped them of their right to contest their imprisonment in habeas corpus lawsuits.

A weeklong hearing for the Algerians, in which all of the evidence was heard in proceedings that were closed to the public, was the first in which the Justice Department was required to present its full justification for holding specific detainees since the Supreme Court ruling.

Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.

Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

As he read his decision in a quiet courtroom, he seemed to bridle at the Supreme Court’s ruling, saying its effect was “to superimpose the habeas corpus process into the world of intelligence gathering.”

He said his decision, which involved men first detained in Bosnia far from the war in Afghanistan, should not be read as a reflection on the strength of the cases against other detainees, more than 200 of whom have filed habeas corpus cases. “This is a unique case,” he said.

Still, there was a buzz in the gallery when he announced that the government had not proved its case against the five men. In urging the government not to continue to fight the case, he noted that an appeal could take as long as two years.

“Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty,” he said.

The men listened to the proceedings over a phone line from Guantánamo. If the government appeals they could remain there indefinitely. If it does not, one of their lawyers, Stephen H. Oleskey, said he expected that they would return to Bosnia, where they would be freed.

In a statement, the Justice Department did not say whether it would appeal, only that it was reviewing the case. It added that the ruling was “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.”

Robert C. Kirsch, one of the six detainees’ lawyers from the law firm Wilmer Hale, said the case showed “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.”

Lawyers for other detainees said the decision was a repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, to avoid scrutiny by American judges. President-elect Barack Obama has promised to close the prison.

“The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents detainees.

But Andrew C. McCarthy, a former federal terrorism prosecutor, said the decision highlighted the difficulties of courts’ reviewing wartime decisions about who qualifies as an enemy combatant. Mr. McCarthy said those were decisions “our system of divided powers consigns to military professionals in the executive branch, not judges.”

The five men who were ordered freed included Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named. The one detainee Judge Leon found to be lawfully held, Bensayah Belkacem, has been described by intelligence agencies as the leading Qaeda operative in Bosnia.

Judge Leon said there had been some corroborating evidence that linked Mr. Bensayah to a “senior Al Qaeda facilitator.”

The case against the six men has become an example of the Bush administration’s pattern of changing strategy in its legal defense of Guantánamo.

In 2002, Mr. Bush made the accusations against the six men a showcase. He said in his State of the Union address that they had been planning a bomb attack on the American Embassy in Sarajevo, Bosnia. But last month, Justice Department lawyers said they were no longer relying on those accusations.

The Guantánamo habeas corpus cases have moved slowly despite a directive by the Supreme Court that judges should act quickly after nearly seven years of detention for many of the 250 men still held in Guantánamo.

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo had failed. But, he said, “Justice comes too late for these five men.”

This week, the Justice Department filed motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding. Department lawyers argued that there were flaws in the ground rules for the Guantánamo cases that would require the government to reveal classified evidence.

Last month, another federal judge in Washington, Ricardo M. Urbina, ordered the release of 17 ethnic Uighur detainees from China. But Judge Urbina did not hold a hearing on the evidence because the government conceded that the men were not enemy combatants, and said it was continuing to hold the Uighurs because it could not find a country willing to accept them.

The Justice Department is appealing Judge Urbina’s ruling. Arguments are scheduled for Monday in the United States Courts of Appeals in Washington.

Bernie Becker contributed reporting.

November 20, 2008
Editorial, New York Times
The Former Attorney General’s Legal Bills

The Justice Department has reportedly agreed to hire a private attorney to represent Alberto Gonzales, the former attorney general, in a federal lawsuit that accuses him of politicized hiring. It is galling to think that Mr. Gonzales, whose department trampled over the rights of so many people, is having taxpayers pay for private counsel, but it may be appropriate.

What is clearly inappropriate is the department’s refusal to make the arrangement public.

When Justice Department officials are sued in connection with their jobs, they are often represented by lawyers from the department’s civil division. But according to a McClatchy Newspapers report, the department has decided to pay for a private lawyer to represent Mr. Gonzales in a civil lawsuit filed by eight law students. They are accusing Mr. Gonzales and other department officials of discriminating against job applicants who were thought to be liberal.

McClatchy reported that the Justice Department has agreed to pay up to $200 an hour, or $24,000 a month, for Mr. Gonzales’s lawyers. The Justice Department, however, has refused to comment on the arrangements.

We have long wanted Mr. Gonzales to be held accountable for his disastrous tenure as attorney general. His prosecutors brought a series of cases that helped Republicans win elections and hurt Democrats. They put Georgia Thompson, a Wisconsin civil servant, in jail on spurious charges for four months after she refused to implicate her state’s Democratic governor in a baseless corruption investigation.

Still, Mr. Gonzales is entitled to appropriate legal representation. According to Stephen Gillers, a New York University Law School ethics expert, there are legitimate reasons the government may want him to have a private lawyer. As the case proceeds, for example, Mr. Gonzales and the government might want to stake out different positions on the law or facts of the case.

That does not absolve the department of its obligation to let the public know whether it is paying for a private lawyer, and if so, why it is making these unusual accommodations. It also should let taxpayers know how much they can expect to spend on the former attorney general’s defense.