washingtonpost.com
Bush's Idea of Swift Justice

By Dan Froomkin
Special to washingtonpost.com
Thursday, August 7, 2008 11:51 AM

Two months after the Sept. 11, 2001, terrorist attacks, and after almost no consultation with anyone outside Vice President Cheney's office, President Bush signed an executive order setting up an extra-judicial system of military commissions, ostensibly to bring tough and swift justice to terrorists.

Nearly seven years, a series of Supreme Court rulings, and multiple congressional capitulations later, a somewhat modified system finally rendered its first decision yesterday, in the case of a minor al Qaeda functionary. It was at best a mixed verdict for everybody.

Jerry Markon writes in The Washington Post: "A military jury on Wednesday found a former driver for Osama bin Laden guilty of supporting terrorism but not of conspiring in terrorist attacks, handing the Bush administration a partial victory in the first U.S. war crimes trial in a half a century.

"The verdict, reached after about eight hours of deliberations over three days, only intensified the debate over whether Salim Ahmed Hamdan's conviction was preordained in an unfair system -- or whether military trials are appropriate for people accused of committing heinous acts against the United States.

"The administration seized on the acquittal to defend its military justice system against accusations that it was politicized and drawn up to ensure convictions. Pentagon and White House officials said they are satisfied with the result.

"'We're pleased that Salim Hamdan received a fair trial,' White House spokesman Tony Fratto said. 'The military commission system is a fair and appropriate legal process for prosecuting detainees.' . . .

"Ben Wizner, a lawyer with the American Civil Liberties Union who attended the trial as one of several human rights observers, ridiculed the administration for inaugurating the military system on 'a marginal figure.' . . .

"'We were told that Guantanamo was necessary because these were the world's most dangerous terrorists,' said Wizner, who criticized the Pentagon for revealing little about U.S. interrogation techniques. 'Salim Hamdan is not one of the world's most dangerous terrorists.'"

William Glaberson writes in the New York Times: "The conviction of Mr. Hamdan, who was part of a select group of drivers and bodyguards for Mr. bin Laden until 2001, was a long-sought, if qualified, victory for the Bush administration, which has been working to begin military commission trials here for nearly seven years.

"The six senior military officers on the panel deliberated for eight hours over three days. Four votes in a secret ballot were required for conviction.

"Critics have long contended that the military commission system does not meet American standards, partly because it allows hearsay evidence and evidence derived through coercive interrogation methods.

"The verdict did not mute the critics. Larry Cox, executive director of Amnesty International USA, said the trial 'revealed what is common knowledge -- the military commissions are fatally flawed and do not adhere to major aspects of the rule of law.' . . .

"Charles D. Swift, a former Navy lawyer who has represented Mr. Hamdan for years, said the case would eventually reach the American court system, which he predicted would correct legal errors here. Mr. Swift called the military commission 'a made-up tribunal to try anybody we don't like.'"

Dan De Luce writes for AFP: "At sentencing hearings that began on Wednesday afternoon, the Navy officer presiding over the case, Keith Allred, rejected a request by the prosecution to call an FBI agent to describe the effects of the attacks of September 11, 2001.

"Allred said Hamdan was 'such a small player' that it would be unfair to have the jury hear the testimony as it would imply Hamdan had a role in the 9/11 attacks."

Carol J. Williams writes in the Los Angeles Times: "Despite the potential for a sentence less than or equal to the time he already has served, Hamdan has been told by his lawyers of the Bush administration's intent to keep all branded 'enemy combatants' detained indefinitely, regardless of any acquittals."

Michael Hirsh writes for Newsweek: "The Bush administration needed a big win in the Salim Hamdan case at Guantánamo. It didn't get one. By convicting Osama bin Laden's former driver -- the first 'terrorist' to be tried under the first U.S. war-crimes tribunal since World War II -- only of 'material' support for terrorism, and absolving him of conspiracy to commit terrorism, the military judges provoked questions about what Hamdan was doing there in the first place. Is driving a car a war crime? The appeals court may decide not -- in which case even this meager verdict could be thrown out.

"'I would be very surprised if any of this conviction stands at the end of the day,' says Scott Horton, a law professor specializing in human rights at Columbia University. 'He was convicted of things that are not war crimes by a tribunal that has the power only to prosecute war crimes.' . . .

"[T]he Hamdan verdict points up, more than anything else, one of the central mistakes of the Bush administration after 9/11: sheer overreaching. Was this really the best the administration could do -- a driver -- in the first test run of its much-batted-about tribunal system, nearly seven years after the terror attacks themselves? By arrogantly deciding that the president had the right to define and pursue the 'war on terror' any way he liked, and that he could define anyone he liked as an 'unlawful combatant' -- then expanding its prisoner population way beyond the true Al Qaeda culprits to include everyone rounded up in Afghanistan and then Iraq -- the administration ensured itself a legal and moral quagmire. . . .

"What began as a hunt for a relatively contained group of self-declared murderers like bin Laden became a feckless dragnet for tens of thousands (if one includes Iraq) that no other country could openly support. And now we are paying for it. We Americans are now fighting the 'War on Terror' all but alone in the world.

"'By defining the war on terror so expansively the administration has undermined the legitimacy of that very concept,' says [Matt Waxman, the former Defense Department assistant secretary of detainee affairs], who fought several brave battles within the White House, principally against Cheney, his chief legal counsel David Addington and their Justice Department mole, John Yoo, to clarify and rationalize detention and interrogation rules. 'Had the government taken a much narrower approach, and restricted the definition of who could be detained, it would be in a stronger position.'"

Rosa Brooks writes in her Los Angeles Times opinion column: "On Wednesday, after 6 1/2 years of controversy and delay, the administration finally scored a 'victory' in a military commission trial at Guantanamo Bay, Cuba, gaining the conviction of one terrorist mastermind.

"Osama bin Laden, you ask?

"Ah, no. He's still living it up somewhere in Pakistan, enjoying a good chuckle at our expense.

"Wednesday instead saw the conviction of Salim Ahmed Hamdan, who fessed up to being . . . Bin Laden's driver. He was accordingly convicted of the 'war crime' of 'providing material support for terrorism.' Next up before the military commissions: Bin Laden's pastry chef, for providing culinary support to terrorism."

The New York Times editorial board writes: "Now that was a real nail-biter. The court designed by the White House and its Congressional enablers to guarantee convictions of high-profile detainees in Guantánamo Bay, Cuba -- using evidence obtained by torture and secret evidence as desired -- has held its first trial. It produced . . . a guilty verdict. . . .

"The rules of justice on Guantanamo are so stacked against defendants that the only surprise was that Mr. Hamdan was actually acquitted on the more serious count of conspiring (it was unclear with whom) to kill Americans during the invasion of Afghanistan after Sept. 11, 2001. . . . . . . .

"We are not arguing that the United States should condone terrorism or those who support it, or that the guilty should not be punished severely. But in a democracy, trials must be governed by fair rules, and judges must be guided by the law and the evidence, not pressure from the government. The military commission system, which falls far short of these standards, is a stain on the United States."

The Los Angeles Times editorial board writes that "if Congress and the administration insist on maintaining a separate judicial system to try alleged terrorists, it needs to be fairer and more transparent, and an acquittal must mean more than a return trip to a prison cell."

The Wall Street Journal editorial board writes: "In a saner world, yesterday's partial acquittal of Salim Hamdan might persuade critics that military commissions aren't the Star Chambers of political caricature. It won't, of course. But for all the press corps innuendo about jurors 'handpicked by the Pentagon,' these supposed rubber-stamps exonerated an al Qaeda terrorist of some of the charges against him."

Meanwhile, the editorial insists: "The conviction vindicates the use of military commissions to try terrorists, instead of the civilian courts favored by the anti-antiterror lobby."

Poll Watch

CBS News reports: "President Bush's approval rating stands at 25 percent, equaling his all-time low reached in June."

Massimo Calabresi writes for Time about the magazine's latest poll that Bush "appears to still be a factor in the race to succeed him. Bush's approval rating hovers steadily at 29%."

But the Washington Times editorial board begs to differ: "Put your stock in polling and you can get a good sense of how the general public feels about the nation's 43rd president right now. But is he really the boogeyman he has been portrayed to be? The arbiter [sic] of all things evil and wrong with our country? Is there nothing good to his credit? History will be the ultimate judge, but we would argue that despite the 'all-time low' ranking, it is not reflective of what this 'unpopular' president has really accomplished during his eight-year presidency. . . .

"Granted, much of Mr. Bush's general standing among the public was lost after Hurricane Katrina, difficulties in Iraq, the Abu Ghraib prisoner-abuse scandal, failure to pass immigration reform and the most recent mortgage and energy realities. Yet, even now, the president has spearheaded the successful surge in Iraq and he may yet transform the Middle East as no one before him has ever done. The president also has a domestic record that he can be proud of - from literacy and faith-based initiatives to judicial appointments and tax cuts. That record also includes the moral restoration of the presidency after years of the embarrassing Clinton scandals."

Suskind Watch

Investigative reporter Ron Suskind's new book charges, among other things, that the White House ordered the CIA in late 2003 to forge evidence of a link between Iraq and al Qaeda. Tuesday's column summarized his main points; in yesterday's column I focused on the White House's weak denials.

Here's Suskind talking to CNN's Wolf Blitzer yesterday afternoon:

Blitzer: "You've caused quite a stir. But let me get you to explain why you think the alleged crimes of President Bush and Vice President Cheney are worse than Watergate."

Suskind: "Well, the way it's framed legally, Wolf, is that the CIA's charter says you cannot run disinformation campaigns on the American public. It's an amendment in 1991. It's in the statute. So that if, ultimately, in Congressional hearings and whatnot, as they go forward -- and there's talk of that in Congress now -- if they're able to show that the White House directed the CIA -- as I show in the book with lots of testimony -- that the CIA was directed by the White House to do this disinformation campaign on this letter, there will be issues of legality that will be debated in terms of high crimes."

And in part two of the interview:

Blitzer: "It looks like there's high interest on Capitol Hill right now, once they get back from their recess, opening up some investigation, some hearings. Will you cooperate? Will you release the audiotapes that you have from your various sources and help them get to the bottom of what's going on?"

Suskind: "At this point, as a reporter for 25 years, I have never dumped tapes or notes to anybody. I am hesitant to do that. If someone were to call, I will deal with that at that moment. What's going to happen first, almost assuredly, is that people will be put under oath, with threat of perjury, in front of Congress to deal with all of these issues. . . .

Blitzer: "Based on everything you know, should the president be impeached?"

Suskind: "Based on everything I know, based on the evidence in this book, and the direct testimony of people involved in many, many instances, there, I believe, should be further investigation, with the powers of government, subpoena power, congressional authority, which is something people have been asking for, for a very, very long time."

Interrogation Room

Alyssa Rosenberg, blogging for The New Republic, finds another striking anecdote in Suskind's book. She writes: "Early in the book, we meet Usman Khosa, a young Pakistani graduate of Connecticut College working, at the time of the events in the book, at a D.C. consulting firm (he's at the International Monetary Fund now)."

"In gripping detail, Suskind chronicles Khosa's brisk detention and interrogation after he fiddles with his iPod a little too close to an opening White House gate: 'Usman is trundled from the SUV, escorted through the West Gate, and onto the manicured grounds. No one speaks as the agents walk him behind the gate's security station, down a stairwell, along an underground passage, and into a room--cement-walled box with a table, two chairs, a hanging light with a bare bulb, and a mounted video camera. Even after all the astonishing turns of the past hour, Usman can't quite believe there's actually an interrogation room beneath the White House, dark and dank and horrific.'"

Torture Watch

Air Force Reserve Colonel Steve Kleinman is one of the heroes of Jane Mayer's book, "The Dark Side." (See my July 14 column for more on the book.)

An experienced interrogator, Kleinman was sent to Iraq in the fall of 2003 to offer advice on interrogation, and was horrified to find that military-CIA task forces were abusing prisoners using tactics that had been reverse engineered from a torture-resistance training program.

Kleinman tried unsuccessfully to put an end to it. And as Mayer wrote: "For bucking these direct orders from the top rungs of the Pentagon to inflict illegal levels of cruelty on the prisoners, Kleinman soon found himself 'the least popular officer in the whole country. I got into serious arguments with many people. They wanted to do these things. They were itching to. It was about revenge, not interrogation. And they thought I was coddling terrorists.'"

Now, in an article for NiemanWatchdog.org, where I am deputy editor, Kleinman raises a critically important question: Why were the president's legal advisers so intent on rationalizing the violation of longstanding law in order to adopt a coercive approach to interrogation -- when experienced interrogation practitioners agree that coercion is not just ineffective, but counterproductive?

Asia Watch

Air Force One has landed in Beijing.

The Associated Press reports: "China has responded to President Bush's speech criticizing Beijing for repression, saying no one should interfere in other countries' internal affairs.

"Foreign Ministry spokesman Qin Gang said China and the United States have divergent views on human rights and religions issues, but said Beijing firmly opposed 'any words or acts' that used those issues to interfere in other countries' internal affairs."

James Gerstenzang blogs for the Los Angeles Times: "With President Bush seeking to demonstrate he is not papering over differences with China as he makes his way through Asia, the Chinese decision to keep speed skating champion Joey Cheek out of the country does not make the president's mission any easier.

"Cheek, a 2006 Olympic gold medalist, is a co-founder of Team Darfur, an organization of athletes seeking to draw attention to human rights violations in the war-torn African region. . . .

"Speaking with reporters aboard Air Force One today as Bush flew to Thailand, his final stop before reaching Beijing, White House Press Secretary Dana Perino said: 'We were disturbed to learn that the Chinese had refused his visa. We are taking the matter very seriously. We have sent in our embassy in Beijing to démarche the Chinese. That is where we go in and we say we are concerned about this, and we want you to reconsider your actions. So we would hope that they would change their mind.'"

Ambika Ahuja writes for the Associated Press: "First lady Laura Bush, meeting with refugees who fled a brutal campaign by Myanmar's military junta, urged China and other countries on Thursday to join the U.S. in imposing sanctions against the country.

"Mrs. Bush, who is traveling in Asia with President Bush, flew to the Thai border with Myanmar, previously known as Burma, to visit the Mae La refugee camp and a health clinic run by a woman known as the 'Mother Teresa of Burma.'

"'We urge the Chinese to do what other countries have done -- to sanction, to put a financial squeeze on the Burmese generals,' Mrs. Bush said."

Iraq Watch

Campbell Robertson and Richard A. Oppel Jr. write in the New York Times: "Iraqi lawmakers adjourned for the summer on Wednesday without passing a crucial election law that many here hoped would solidify the recent, still fragile gains in security. The failure seemed likely to mean the postponement of provincial elections, originally set for October, until next year -- polling seen as vital to reconciling the deep-seated tensions among Iraq's political and sectarian groups.

"The decision to go on vacation rather than settle the issue underscored how little progress had been made on the most important recent political question to confront Iraqi leaders, in contrast to the military strides in making Iraq safer than it had been in years. The law was seen as so important to prevent new outbreaks of violence that President Bush, eager to leave office claiming lasting progress in Iraq, had called several Iraqi lawmakers urging them to pass it."

Karen DeYoung wrote in yesterday's Washington Post: "Iraq's oil income will more than double this year, even as Baghdad continues to spend only a small percentage of its own money on reconstruction and services while it banks billions in surplus funds, according to projections by U.S. government auditors."

Scott Stearns reports for Voice of America: "Senate Armed Services Committee Chairman Michigan Democrat Carl Levin and the committee's ranking Republican Virginia Senator John Warner say Iraq should use some of that money to repay American taxpayers who have already spent approximately $48 billion stabilizing and rebuilding Iraq."

CNN just showed White House spokesman Tony Fratto responding to that suggestion: "The reimbursement to the United States is that we will have a long-term ally that will stand with us in this very critical part of the world."

India Watch

P. Parameswaran writes for AFP: "A key US lawmaker threatened to hold up a landmark US-India nuclear agreement unless nuclear supplier states adopt a provision terminating the deal if India conducted a nuclear test explosion.

"Howard Berman, chairman of the House of Representatives foreign affairs committee, said if the 45-nation Nuclear Suppliers Group (NSG) did not impose such a condition, the deal could not be approved before President George W. Bush leaves office in January 2009."

Justice Watch

Murray Waas reports for Huffingtonpost.com: "A federal grand jury has subpoenaed several former senior Justice Department attorneys for an investigation into the politicization of the Department's own Civil Rights Division, according to sources close to the investigation.

"The extraordinary step by the Justice Department of subpoenaing attorneys once from within its own ranks was taken because several of them refused to voluntarily give interviews to the Department Inspector General, which has been conducting its own probe of the politicization of the Civil Rights Division, the same sources said.

"The grand jury has been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.

"Sources close to the investigation say that the grand jury is also more broadly examining whether Schlozman and other Department officials violated civil service laws by screening Civil Rights attorneys for political affiliation while hiring them."

Laugh Track

Jeff Dufour and Patrick Gavin of the Examiner count the instances of "(laughter)" in the White House press briefing transcripts and find that current press secretary Dana Perino is in former colleague Scott McClellan's league -- not Tony Snow's -- when it comes to cracking up the press corps.

Agence France-Presse White House correspondent Olivier Knox, however, "maintains that Perino is still far funnier than McClellan ever was. . . .

"'I really appreciate Dana's sense of humor, but I'm not sure it lends itself to a lot of people joining in.' Knox calls Perino's comedic style 'dry and wry.'

"'Tony was all dramatics and winning the argument at any cost,' added Julie Mason, who covers the White House for the Houston Chronicle. 'Dana has a completely different style, but she's just as effective, in a more low-key way. She's the master of the blank-face put-down -- without ever changing her tone or expression, she can cut some journalists off at the knees.'"

Batman Watch

Corey Anderson writes for MinnPost with his "Top 10 ways George W. Bush and Batman are totally alike."

Among them:

"Fooling the public by pretending to be alcoholic, narcissistic frat boys."

"Must contend with portly, squawking, madmen with an affinity for birds."

And: "Spending days brooding in their mansions, pondering the day they no longer have to do their jobs."

Cartoon Watch

Mike Keefe on Bush's great Gitmo victory; Kevin Siers on McCain's Bush problem; Jeff Darcy on Bush digging his way to China.

View all comments that have been posted about this article.

© 2008 Washingtonpost.Newsweek Interactive