Sunday, February 22, 2009

Governments of principle?

Three things to read today that speak to the challenges facing western democracies in upholding the rule of law, specifically in respect of how we treat detainees in our custody.

1. This New York Times report on the Obama administration's decision regarding the ability of detainees in Afghanistan (and Iraq) to challenge their detentions:
The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.
This was a great disappointment for anyone hoping for a new direction from the Obama administration on such detentions. However, there's still a ray of optimism:
Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided “to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything” about the detention policies it inherited because it had too many other problems to deal with.

“It may take some time before we see exactly what is going on — whether this is just a transitory policy or whether this is really their policy: ‘No to Guantánamo, but we can just create Guantánamo in some other place,’ ” Mr. Balkin said.
Something to watch going forward. Along with the next item...

2. This Scott Horton piece on U.S. and international law requiring criminal investigations of the following matters pertaining to detainee treatment:
There are three areas of particular concern:

First, the interrogations program, which University of California law pro-fessor John Yoo, the author of the infamous torture memoranda, properly calls the “Bush program.” A system of torture techniques was introduced by the Bush Administration over sustained opposition from career lawyers, particularly military lawyers. One for instance, now a senior general in the Pentagon, recounted to me how he confronted John Yoo directly telling him that the techniques under contemplation and approved by Yoo were violations of U.S. criminal law and would lead to prosecutions. Yoo responded by saying that he had considered that possibility and had therefore involved the chief of the criminal division in the opinion writing process. The Bush Administration would not prosecute the Bush Administration’s decisions, he implicitly offered. But the administration that follows will, the general responded.

Second, the system of extraordinary renditions under which persons were seized and transported to secret prisons outside of any accountability under law and then regularly tortured either by U.S. agents or by foreign states acting as proxies.

Third, the system of military commissions created in Guantanamo, an unprecedented judicial travesty. Six prosecutors resigned or requested transfer after disclosing that they were aware of efforts by political figures to rig the proceedings assuring outcomes acceptable to the administration. This has placed an unprecedented taint on the American military justice system, which previously was a point of pride for our country.

These three programs violated criminal law in a systematic way, the violations occurring as a matter of policy formed by government and pushed through over objections of career employees.
Horton continues his call for a blue ribbon commission in addition to the "unavoidable" criminal prosecutions.

3. Pogge's blogpost on Friday, supporting the need for an investigation here in Canada of the handling of detainees in Afghanistan, under Peter Tinsley, the chair of the Military Police Complaints Commission. Why should we care? We should care about whether the government is ensuring that Geneva Conventions are being applied overseas by our forces, that the government is supporting them, not putting them in compromising positions. We should care about how we're perceived by the international community in fulfilling our obligations when involved in such conflicts. Things people in healthy democracies should care about and ensure are not left in big messes of conflicting and questionable accounts, which appears to be the case at the moment in Canada.

That's all, just three little light pieces...:)