The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

The survivors of two Guantanamo detainees who died in U.S. military custody had their hopes of assigning civil liability dashed yesterday. The families of Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami saw their suit dismissed by a district court judge who relied on the Military Commissions Act of 2006 in her order.

The deaths, which were deemed "suicides" by the military, drew closer scrutiny after a Seton Hall study was released suggesting several reasons for suspicion. After attorney and ACS participant Scott Horton discussed the deaths on MSNBC, four soldiers who had been stationed at Guantanamo came forward and shed further light on what happened that night.

According to the Associated Press, the families of the deceased sought damages "under the Alien Tort Claims Act, alleging arbitrary detention, torture, cruel and inhuman treatment, violations of the Geneva Conventions, and cruel and unusual punishment." The judge dismissed these claims, deferring to the military's position that the detainees were enemy combatants rather than prisoners of war.

This determination "runs contrary to the evidence," Horton wrote today. 

Both men were turned over to U.S. forces for bounty payments, and a thorough investigation of their cases by American military intelligence concluded that there was no meaningful evidence to link either man to either Al Qaeda or the Taliban. Al-Zahrani had been placed on a list to be released back to Saudi Arabia, immediately behind Mani Al-Utaybi, who also died under still unexplained circumstances on June 9, 2006, at approximately the same time as Al-Zahrani and Al-Salami, according to pathologists. 

[Image via smit5334.]

Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.

[Image via christophe dune.]

Maher Arar is appealing his torture suit to the U.S. Supreme Court, presenting the justices an opportunity to review the controversial "state secrets" privilege asserted by the Bush and Obama administrations. Arar's suit against the United States government stems from his 2002 arrest in New York and transfer to Syria for alleged ties to terrorism. At a prison in Syria, Arar alleges, he was tortured, interrogated and detained for almost a year.

Arar (pictured at right) is a Canadian citizen who successfully sued his government for its role in misinforming the United States about his ties to terrorism. In lower courts here, though, Arar has been rebuffed. The government's assertion of the "state secrets" privilege has barred Arar from presenting evidence necessary to the advancement of his suit.

The Center for Constitutional Rights (CCR), which is representing Arar and filed his petition for certiorari yesterday, has a collection of resources on the case here. ACS also has a wealth of resources, including Issue Briefs on the "state secrets" privilege and the U.S. ban on torture by Prof. Amanda Frost and Devon Chaffee, respectively. ACS also hosted Prof. David Cole, who is working with CCR on the case, as part of a national security and human rights symposium at the National Press Club in Washington, D.C. last fall. Video of that event is available here. 

[Image via CBC.]

On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.

This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.

If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.

It cannot be that the United States views itself as the only legitimate prosecutorial authority. We certainly allowed Iraq to adjudicate Saddam Hussein and be hanged without so much as a blink of an eye. Indeed we provided security for the proceedings which if conducted on U.S. soil would most likely have been a violation of cruel and unusual punishment by hanging him and severe deprivations of due process in that the system of justice that adjudicated him and carried out the sentence was tantamount to a lynch mob.

As President Obama prosecutes the "Overseas Contingency Operation" (formerly known as the War on Terror) we must consider that this is a position of unilateral preemptive war which is a paradigm shift in foreign policy of titanic proportions, ratified by both political parties. We are conducting this "war" in violation of human rights, international law, and national sovereignty.

Reflection upon the Vietnam War era informs the absurdity of our position. As has been noted in "The Dark Side" by Jane Mayer, the "North Vietnamese refused to respect U.S. pilots as legitimately covered by the Geneva Conventions, calling them 'pirates' in an illegal war." Many of these pilots were tortured and killed. "The Viet Cong, meanwhile, defied conventional rules of warfare, often fighting without uniforms, disguised as civilians. The United States nonetheless gave the Viet Cong the protection of the Third Geneva Convention." The Vietnam Conflict demonstrates that even under the most challenging circumstances we as a Nation were able to "stay above the fray." This was in the face of over 58,000 service members who died during that conflict (as compared to the over 5,000 during Operation Iraqi Freedom/Operation Enduring Freedom) and the civil outrage that permeated throughout the Vietnam conflict.

As Newton discovered "for every action there is an equal and opposite reaction." The shortsightedness of this policy determination does not make us safe as a Nation, nor does it contemplate third and fourth order consequences. President Obama just proclaimed in his first State of the Union that he will not "accept second place for the United States of America." I hope that this is not just another empty promise and that we apply this philosophy with regard to human rights and the rule of law.

[Image via smith5334.]

Justice at Guantánamo

One Woman’s Odyssey and Her Crusade for Human Rights

By Kristine A. Huskey

[Available Here]

"Justice delayed is justice denied" would become our great battle cry in the advocacy efforts on behalf of our clients detained at Guantánamo. We would hum it like a mantra in court hearings, before Congress, in closed meetings with government officials, and to the public in attempt to obtain for the detainees the right to habeas corpus -- the right to challenge their detention. Eight years and counting, and our cry for justice continues for the men still imprisoned at Guantánamo. Despite the Supreme Court's 2008 ruling in Boumediene v. Bush that the detainees are constitutionally entitled to habeas and despite President Obama's promise to close Guantánamo within a year of his taking office, the prison remains open with approximately 196 men, the majority of whom have had no habeas hearing nor been charged with any crime. Several years ago, a D.C. district court judge once concluded: "It is often said that ‘justice delayed is justice denied.' Nothing could be closer to the truth with reference to the Guantánamo Bay cases."

My colleagues and I at the white-shoe law firm of Shearman & Sterling began representing Kuwaiti citizens detained at Guantánamo in March of 2002, just six months after 9/11. Then, it was worse than controversial to do so, it was considered unpatriotic. We were called terrorists by some and The Washington Post printed a letter to the editor suggesting that we be sent to Cuba to join our clients. Because Guantánamo really was a legal black hole back then, we sued the government on behalf of our clients and wound up before the Supreme Court in the case, Rasul v. Bush, which ultimately held in 2004 that the detainees had a statutory right to habeas. We had won! When we went to Guantánamo for the first time -- soon after Rasul -- we ecstatically told our clients about the ruling that would allow them a fair hearing and eventually to go home. But, Congress intervened twice -- first with the Detainee Treatment Act in 2005, and then with the Military Commissions Act in 2006 -- all in attempt to cut off the basic right of these imprisoned men to challenge their detention.

Following our "win" in Rasul, we had four more years of litigation and countless visits to Guantánamo to deliver bad news to our clients -- men who had not seen or spoken with their families in years, men who had been abused and tortured and who had participated in hunger strikes to protest the injustice of their situation. One of my most upbeat and ever-optimistic clients wrote out his last will and testament and sliding it across the small card table, quietly told me that he just "couldn't take it anymore." Then in 2008, the Supreme Court ruled in Boumediene that the Guantánamo detainees had the constitutional right to habeas -- the right to challenge their detention -- a right which couldn't be taken away by Congress or the lower courts. We had won, again! But, the Department of Justice intervened and delayed, slowing the habeas litigation down to a crawl such that in the year and a half since the Court concluded the detainees were entitled to "prompt habeas hearings" only 41 detainees have had habeas hearings. In bittersweet victory, federal judges have determined that in 32 of those cases, the government's evidence did not justify the detentions. Some of those men are still at Guantánamo today.

When President Obama signed an executive order -- just two days after taking office -- requiring the closure of Guantánamo within one year, we rejoiced. We had won, big time! But, Congress and the fear-mongering talking heads intervened by passing legislation and inciting public opinion that would make closing Guantánamo and transferring the men to their home countries or other safe countries extraordinarily difficult.

Some people have remarked that the title of my book "Justice at Guantánamo" is an oxymoron and sadly, I couldn't agree more. I wrote the book -- a memoir -- because I wanted to tell the story of Guantánamo and how it came to be. I wanted to tell the story of my clients and me-as human beings. The book is far from a legal text, rather it is the human side of Guantánamo-an attempt to reveal the cost to the men there and the difficulties and discoveries I encountered as a young attorney. The book ends with my HOPE that President Obama would make good on his word. Yet, Obama's promise of change has atrophied into empty rhetoric.

This January is a significant month for Guantánamo observers: January 11th marked the 8th year of its existence and January 22nd was the deadline for its closure. The latter date passed without much fanfare by the government. No new deadline has been set for the prison's closure nor has any official plan been announced for dealing with the men still detained there. It is time to close the detention center, not by transporting it to Illinois, but by really closing it and all U.S.-run prisons outside the law. Justice at Guantánamo and an end to the injustice it has come to represent is long overdue.

After publishing his latest, extensive review of the Seton Hall study on three questionable detainee deaths at Guantanamo Bay, Harper's Magazine's Scott Horton took to the airwaves last night to discuss the details provided by a new whistleblower and the government's response.

Visit msnbc.com for breaking news, world news, and news about the economy

Last night's edition of "The Daily Show with Jon Stewart" featured a discussion with John Yoo, current professor at UC Berkeley School of Law and former Deputy Assistant Attorney General in the Justice Department's Office of Legal Counsel (OLC). Yoo worked at the OLC during that office's production of the "torture memos" and was a signatory to some of those memos.

Yoo discusses that work in the clip below.

Despite renouncing torture, the Obama administration continued to defend alleged torture perpetrators from civil liability yesterday. Before the U.S. Court of Appeals for the Ninth Circuit, the administration again invoked the "state secrets" privilege, attempting to scuttle litigation brought by persons claiming to have been victims of the Bush administration's torture program.

The plaintiffs allege that they were kidnapped and transported to CIA black sites -- a practice known as "extraordinary rendition." At the black sites, the plaintiffs assert that they were tortured in the Bush administration's pursuit of the "War on Terror." They filed suit against a Bay Area subsidiary of Boeing for helping arrange the flights on which they were transported. The Justice Department promptly intervened on behalf of the company.

"The Obama administration, following the legal strategy of its predecessor, asked the court to throw out the suit - and insisted that even the question of whether the company, Jeppesen Dataplan, was working with the government could threaten national security," reports The New York Times. "'We are not asking you to do anything radical here,' insisted Douglas Letter, the lawyer for the Justice Department. 'This case cannot proceed without getting into state secrets.'"

According to the San Francisco Chronicle's Bob Egelko, "Several judges noted that most of the essential facts of the case have been widely aired -- the existence of the 'extraordinary rendition' program under President George W. Bush, the five plaintiffs' accounts of their abduction and torture, and the alleged participation by Jeppesen Dataplan of San Jose," a Boeing subsidiary.

The Northern District of California heeded the government's assertion of privilege, dismissing the case from its docket two years ago. The suit saw new life when a three-judge panel of the Ninth Circuit overturned the trial court's decision. Yesterday, the case returned to the circuit -- this time before an 11-judge panel. Both parties are anticipated to appeal an unfavorable decision to the U.S. Supreme Court, which just this week declined to review a civil suit against government officials who orchestrated torture in the name of national security.

[Image via Graeme Bird.]

Seven months ago, the United States issued a list of human rights commitments and pledges in support of U.S. candidacy for membership in the U.N. Human Rights Council. The decision to join the Human Rights Council was the right thing to do. It was as an important step in breaking with the Bush administration's unilateral and disastrous policies on human rights. While we welcomed this move, we noted that the Obama administration had "missed an opportunity to detail exactly how it will reaffirm its commitment to ending human rights violations at home beyond vague rhetoric." We warned the Obama administration to "move beyond ambiguous commitments which are similar to the ones heard from the Bush administration over the past eight years."

There is no question that this administration is currently facing multiple and daunting challenges, including the wars in Iraq and Afghanistan and the safe closing of Guantánamo, the economic crisis and rising unemployment, health care, energy reform and much more. However, nearly a year after Obama's inauguration, the administration has yet to announce any major domestic human rights initiative, outline a detailed plan to honor and expand our existing human rights commitments and translate them into domestic policy, or incorporate them into the daily working of the U.S. government.

Tomorrow, the president will accept the Nobel Peace Prize. The prize is traditionally given out on Human Rights Day, which marks the 61st anniversary of the Universal Declaration of Human Rights. Former first lady Eleanor Roosevelt, who led the U.S. delegation to the U.N. Commission on Human Rights in the 1940s, called this landmark document "the Magna Carta for humanity."

We have seen this administration take bold steps in the early days of Obama's presidency when three executive orders were signed pledging to close Guantánamo within one year, end CIA secret detentions overseas and reaffirming the absolute prohibition against torture. Furthermore, the administration has also committed to advancing civil rights and promoting equal opportunity. We all remember the presidential speech on civil rights delivered at the NAACP annual meeting, and the administration's strong support for legislation like the Lilly Ledbetter Fair Pay Act and the Employment Non-Discrimination Act, which the administration supported in testimony before Congress (PDF). The president has committed to advance women's rights by issuing an executive order establishing the White House Council on Women and Girls and prioritizing a critical women's rights treaty for ratification. The administration's commitment to persons with disabilities has been made clear in the signing of the Convention on the Rights of Persons with Disabilities and the White House's celebration of the 20th anniversary of the Americans with Disabilities Act.

However, there has been much debate and criticism about decisions the Obama administration has made in the subsequent months on a number of important issues. The administration has been reluctant to fully investigate acts of torture committed by the Bush administration and end the practice of extraordinary rendition. The practice of invoking the state secret privilege to block accountability continues, and the discredited military commissions in Guantánamo Bay have been revived. There has also been no announcement of a significant action or initiative to fully honor our human rights commitments and treaty obligations and fully incorporate them into national security policies including the treatment, detention, trial and repatriation of detainees in U.S. custody overseas notwithstanding the announcement in September of the detention and prison reforms in Afghanistan.

Therefore, we must continue to make the case for human rights here at home by supporting the goals of the Campaign for a New Domestic Human Rights Agenda - a broad coalition of approximately 50 U.S.-based human and civil rights, civil liberties and social justice organizations tasked with finding the best fusion between civil rights and human rights. Key objectives of the campaign include:

• A new, enhanced executive order revitalizing the Interagency Working Group on Human Rights to coordinate the efforts of federal agencies and departments to respect and implement human rights obligations as U.S. domestic policy;
• Transforming the U.S. Commission on Civil Rights into a U.S. Commission on Civil and Human Rights;
• Monitoring government compliance with the Convention on the Elimination of All Forms of Racial Discrimination which the U.S. ratified in 1994; and,
• Strengthening federal, state, and local government coordination to support human rights.

On Human Rights Day 11 years ago, President Clinton issued an executive order creating an Interagency Working Group on Human Rights, which was subsequently disbanded during the Bush administration. The ACLU reiterates its call for the resurrection of a more effective Interagency Working Group on Human Rights to coordinate and promote human rights within domestic policy, and for the implementation and enforcement of ratified human rights treaties and essentially bridging the often artificial gaps between civil rights and human rights.

Further, President Obama must make it clear that human dignity is of paramount importance, and that accountability for human rights is a U.S. national interest. The administration must seize the opportunity to uphold core American values of fairness and justice for all by building a much-needed human rights infrastructure here at home.

While presidential speeches, like the one expected in Norway tomorrow, are important to rally public support for human rights, what is needed is unequivocal and concrete action to honor human rights commitments at home. Too many people have suffered as the United States' human rights record crumbled under the Bush administration. The time is for action is now.

[This was initially published at Huffington Post. Image via United Nations Photo.]