The Daily “How Obama Is Failing Us” Post

Greenwald has the details.

It isn’t the least bit surprising that this is happening, but it really is irritating.

*** Update ***

From the comments:

Funny that Greenwald doesn’t seem to link to the actual filing. But the SCOTUS blog does here with a much more indepth explanation of the Justice Department’s stance

http://www.scotusblog.com/wp/u…..at-bagram/

I love Glenzilla but he is just about ridiculous with his rhetoric in that post. If you look at the substance of the argument it has nothing to do with continuing Bush policy. It has EVERYTHING to do with

1. Waiting to see if the other Judge was right about extending Habeus rights to the prisoners at Bagram which would set a precedent that would extend to more than just the 3 plaintiffs.

2. To try to give the government time to finish their review of detainee policy at Bagram which they believed would be finished within 6 months when President Obama signed the executive order creating the Task Force to study it.

Basically what the government is saying is that they haven’t had time to review all of the cases at Bagram yet and it would be nice to have that opportunity before the courts say all of the detainees have habeus rights and we get a mountain of litigation from those detainees asserting those rights. If you go to the actual link to the court filing the Justice Department points out that just because a detainee was grabbed outside of the theater doesn’t mean they didn’t commit crimes in the theater and then leave. It also talks about the problems that would occur if we were to capture suspects in Pakistan and then not be able to detain them in Bagram (which is in Afghanistan) because of these rulings. Please remember that fighting terrorists isn’t just the same as fighting normal crimes. Especially in a war zone.

The key word in all of this is time. This isn’t Bush confident in his policies and telling the courts to get bent. This is President Obama reviewing the process so they can make changes going forward as soon as they have some recommendations. I understand that for whichever of those prisoners who might truly be innocent in Bagram and have been there for years that they want to be out yesterday. But on the other hand the government has to be careful not to open a pandora’s box whereby the bad get released with the good in the middle of what is truly a war zone.

I guess Glenzilla will end up on the cover of Newsweek and have an appearance on Morning Joe soon since he has now said effectively that President Obama is worse than Bush but he is just about to over play his normally spot on hand with his rhetoric. And thats real.

So I guess people have differing views on this…






282 replies
  1. 1
    Just Some Fuckhead says:

    Fucker.

  2. 2
    Comrade Jake says:

    Greenwald’s suggesting the Obama administration is further right than a Bush-appointed, right wing judge. Given everything else we’ve seen from them, it seems much more plausible to me that Greenwald simply doesn’t have access to the same facts the current DOJ does.

    In other words, for the moment I’m going to give the admin the benefit of the doubt on this one. I’m not suggesting Greenwald should stop bitching and moaning about this sort of thing (that appears to be in his DNA), just that I’m not eager to follow him into the "I’m too righteous for my blog, too righteous for my blog, too righteous for my blog" Right Said Glenn territory.

  3. 3
    El Tiburon says:

    Does this ever happen to anyone:

    You’re out at a nice club having a few adult beverages. You’re feeling good, nice buzz on.

    Then, this really hot chick makes eyes at you. I mean she is smoking. Nice rack, gorgeous hair, she even smells good.

    So you chat her up, your bullshit is flowing and she is digging your chili. This may be love.

    So you jet out to Vegas to get married and you find out she’s loaded and she doesn’t really care if you bag all of her hot friends.

    I mean, you hit the mother lode.

    Then, when you hit the suite on your honeymoon and she takes off her wedding dress, as she removes her thong panties, a big dick and balls pop out from between her legs.

    Has this ever happened to anyone?

    Because this is what I’m starting to feel like with this Obama dude.

    Seriously, WTF?

  4. 4
    smiley says:

    I’m with Comrade Jake on this one. The FIX EVERYTHING YESTERDAY! attitude is a bit premature it seems to me. Let’s not forget all the Bush appointees who have burrowed their way into the Justice Department.

  5. 5

    While I agree that the criticism may be somewhat sanctimonious his point is based on the facts. How much time does the Obama administration need? I am concerned that the administration is either dragging its feet or not really interested in giving up the power grabbed by the last administration. I don’t think calling them out is calling the administration a failure. It does highlight the disappointment so of us are feeling over the administration’s continuation of Bush policies that are clearly wrong. Period.

    Criticism from the left, or center for that matter, is just what we need. With the righties lost in the maze of birth truthers and Palin worship I see little in the way of real opposition to the Obama administration. Someone has to ask the tough questions. That isn’t coming from Chuck Todd or Neil Cavuto. (Chuck, I love you man, but you were much better as a number crunhcer than you are a reporter.)

  6. 6
    imasmart says:

    @El Tiburon:

    That happened to me just last night. I’m on the phone with my lawyer now working up divorce papers.

    To the point of the post, it’s not surprising given his FISA vote. For all the good that it’ll do I’ve emailed the White House telling them this is bullshit.

    Obama will he a mixed bag. Hopefully more good than bad.

  7. 7
    burnspbesq says:

    @El Tiburon:

    None of us have seen the actual case files and can make informed judgments about whether revealing the relevant information in particular cases would actually pose a threat to national security. That applies equally to Greenwald, and he must know that; it makes his rant silly and intellectually dishonest, even if you agree with his basic outlook on the topic.

    I know I’m starting to sound like a broken record, but: as a lawyer, I take vehement issue with the way the Bush and Obama administrations have been applying the state secrets privilege, but there is a need for a narrowly constrained state secrets privilege. And the fact that the government lied to the court in the case that established the privilege doesn’t change my mind about that.

    P.S. If you really love her, you’ll go down on her.

  8. 8
    Ash says:

    Blahdy blahdy blah. Get back to me in a year (or even two, who even knows exactly how much the last guy screwed the pooch) then we’ll talk.

    I have no problem with Greenwald being the ever vigilant one on these issues, but I love how he seems to think he’s actually part of the DOJ.

  9. 9
    Comrade Jake says:

    @The Grand Panjandrum:

    While I agree that the criticism may be somewhat sanctimonious his point is based on the facts.

    Only those that are in the public domain. The fact of the matter is that Greenwald does not have access to all of the facts.

    It is very possible that the DOJ lawyers are simply doing their job here: namely, defending their client (the US government) who happens to be holding a piss-poor hand when it comes to these detainees. These people have been held for years. It’s going to take more than a few months to untangle the mess.

  10. 10
    Brick Oven Bill says:

    Things like that have never happened to me El Tiburon, a very good story though. Thank you for sharing. But if you, or anyone who reads this joins the military and thinks:

    ‘Hey, if I marry this chick, I’ll get another $200 a month in pay from the government’,

    don’t do it.

    From this I can speak from hands-on experience and am willing to show the marks to anyone who doubts me. There are also strong parallels between my nightmare romance and this President, in my opinion.

  11. 11
    Incertus says:

    This is the (very limited) down side to being in power–you don’t just get to bitch at what the other side is doing; you have to actually bitch at your own side from time to time. I don’t like the tack the Obama administration is taking on this, not in any way, and I’m not willing to give them the benefit of the doubt on it at this point.

    However, I’m not ready to condemn his entire presidency just yet either. He’s shown a willingness to move on other issues when enough pressure is exerted–we can move him on this as well. Could anyone say that of the other choices for President last November?

  12. 12
    ezsmirkzz says:

    It’s called political pressure.

  13. 13
    Libby says:

    I’m all for giving Obama time before I make any final judgments but I have to agree with Glennzilla on this one. Obama flipped on the FISA vote before the election, after promising to vote against telecom immunity. We all told ourselves that he HAD to do it to get elected…. blah, blah and blah, and we should trust to do the right thing once he gets into office. Still not seeing any change here.

    I don’t want to lose sight of the good things like the environmental regs and easing of FOIA shutdown, but this is a big issue and goes to the core of the unitary executive excesses that I voted against. And while I agree narrowly focused state secret defenses are sometimes necessary, this feels like a pretty broad application to me.

    I’m not just irritated, I’m disappointed and depressed about it. He’s got the political capital right now to end these practices and he’s not using it. No good can come of this, I think.

  14. 14
    valdivia says:

    I too return like a broken record to state that this idea that Obama should fix 8 years of executive privilege yesterday is a little ludicrous. Was it a few weeks ago that Greenwald was screaming about Obama being no different than Bush because he would do singing statements just like Bush did, and then, it did not happen? Someone upthread says–how long are we to wait? My take? Definitely *more* than 90 days. The reflexive Obama=Bush line is not only disturbing for the lack of analytic validity but because it makes what Bush did diminish in monstrosity, and I truly do not get why anyone would want to lower the bar on what the past administration did only to feel righteous about their own judgment of Obama.

  15. 15
    Changeroo says:

    Boo Hoo Hoo! Poor widdle Gleenwald, all betrayed by his idol. LOL

  16. 16
    Comrade Jake says:

    @Libby:

    He’s got the political capital right now to end these practices and he’s not using it.

    But Obama picks his battles. You can be upset that he hasn’t chosen to make this one of them (I am too), but I’m not sure that it’s necessarily on the same plane as the economy, health care, energy independence, etc.

  17. 17

    @Libby:

    And while I agree narrowly focused state secret defenses are sometimes necessary, this feels like a pretty broad application to me.

    Precisely. Greenwald has been making that very point in a several pieces over the past couple of weeks. I can’t give the administration the benefit of the doubt on this one.
    @Incertus: I agree. Being disappointed about a few things the administration has done does not mean I think they have completely failed. But this isn’t just some small issue. This particular policy was at the very core of my disgust with the last crew.

  18. 18
    wilfred says:

    We’re an empire now. The Emperor (almost) never gives up power.

    It’s just a question of good and bad emperors. We’ve already had Caligula, mayby we get Marcus Aurelius this time.

  19. 19
    Tim H. says:

    This isn’t something complicated that withdrawing from Iraq. All Obama had to do was tell the DOJ, "don’t fight this." So he doesn’t get a pass on this one.

  20. 20
    Bill H says:

    While I accept the argument that Obama cannot right all of the wrongs of his predecessor at once, or do so right away, I do not accept that it means that I support him taking actions which are affirmative continuations of repugnant policies that he promised to end, let alone expanding on those policies with acts that are even more extreme and repugnant such as his new "sovreign immunity" claim.

    I’m not sure which is more appalling; the DOJ actions here, or the media’s refusal to cover it.

  21. 21
    smiley says:

    Here’s another way that Obama has failed (according to the right).

    Good response, I guess, from David. (I say I guess because the problem was the Italians, not the hijackers.)

  22. 22
    Bootlegger says:

    To me its not a matter of "more time", I’d just like our leader to go on TV, radio, internet, whatever and just be honest with us. If he’s got a good reason to do it, then tell us and explain his reasons, that way we can judge for ourselves.

    When we were all teenagers we *knew* what was best for us and our parents were idiots, and not just stupid, but tyrants who took away our rights. Then, you become a parent (or just a grown up) and realize that your parents had access to information that you didn’t and they were probably right because it was their responsibility to keep you safe. Now I’m definitely *NOT* saying that Bush was a wise father and the rest of us surly teens, rather I’m saying that its easy for candidate Obama to hold one position before he’s president and then have to adopt a different one when he’s responsible for world security and in possession of new information. As our elected leader, however, he owes us an explanation.

    Or he’s a hermaphrodite golddigger, I suppose either metaphor is likely.

  23. 23
    Bootlegger says:

    @smiley: Did you notice how the French are now the "badasses" rather than "surrender monkeys" because they have now stormed three pirated ships? If the French keep this up we’ll have Murkans eating french fries again in no time.

  24. 24
    SGEW says:

    We’ve already had Caligula, mayby we get Marcus Aurelius this time.

    But we thought we were voting for Cicero.

    Cuiusvis hominis est errare, nullius nisi insipientis in errore perseverare, I guess.

  25. 25
    geg6 says:

    My emails of protest went out on this yesterday. And that’s why I’m proud to be a Democrat. We expect better of ou guys and hold them responsible. Culture of responsibility indeed.

  26. 26
    Zach says:

    Bush really fucked Obama over here. There are probably people at Bagram who can’t be convicted with evidence that would be admissible in American courts. There are probably people who could be convicted with admissible evidence. The problem is that once you grant Habeas rights to the latter group you do so for everyone. And at the sign of the first acquittal owing to evidence being thrown out, the right will gin up outrage at Obama’s Justice Department that’s more willing to read them their rights than lock them up and throw away the key.

    I’m inclined to try everyone here (or release those that we won’t try) and let the chips fall where they may ASAP. No other endgame really makes sense although I guess the current plan of holding onto people until you can work out behind-the-scenes repatriation schemes with other countries could work in most of the cases.

  27. 27
    Davis X. Machina says:

    Where’s the legislation to rectify the problem? Dems have a majority in both houses.

    If the Executive won’t fix it, and the Legislature won’t fix it, then you’re looking at a consensus that it isn’t broken.

    And that consensus may not exist only within the beltway, either. Your median voter might conceivably like waterboarding, wishes extraordinary rendition were more widely used, doesn’t care about eavesdropping and data mining, etc. etc — or not care enough, compared to other things. At any rate, he’s not deciding elections based on his position with reference to that consensus.

    The government we have, and the government we had until January, were not imposed by an occupying foreign power. It’s the government we wanted.

    The bums in "throw the bums out" are ourselves.

  28. 28
  29. 29
    Bootlegger says:

    @geg6: A key difference indeed, and Obama could sharpen the contrast by speaking to us as adults.
    @Zach: I agree with the "let the chips fall" argument. I say better to die living by our values than to live as petty tyrants.

  30. 30
    DanSmoot'sGhost says:

    The cited article does not provide all the facts in the case. It makes an argument for a particular point of view. When Eric Holder writes the article with the other side of the argument, then I might start to get a more balanced view.

    I don’t fall for trying cases in the media, on tv, or in the blogs. No matter what kind of case it is.

    Obama did make a mistake here, and the mistake was to prejudge this tangled mess as a candidate and say things that he now wishes he hadn’t said. That’s the mistake he made, and I don’t really fault him for it. It’s a mistake almost all candidates for office make at one time or another. It’s a mistake we supporters of candidates also make. We grab at the rhetoric and then we are the ones who have to "reconcile" the gaps later. Typically, as you see happening here, we club the officeholder for saying A during a campaign and then doing B when in office.

    Well, that’s the way the world works. If you want a better form of politics that doesn’t require candidates to set themselves and us up for these situations, then you should work diligently to create that political context. You have your work cut out for you, that’s all I can say. One thing I can assure you, you are not going to get better candidates than Barack Obama. So if there is a fault, look to the underlying causes and not to the individual politicians.

    There is no way that Obama or any other politician is going to overturn 60 years of secretive, manipulative government in the area of defense and security and intelligence, in one quarter, or one term, or two terms, or even four terms if he could get four terms. And I will not ask him to throw himself on that sword to be a symbolic martyr for that 60 years of shit that we have created.

    Obama is president of the country we made for him to be president of. Like it or not, this is not about Bush, or even Nixon. It’s about us.

    Pretending otherwise, and barking about a tiny tip of a monstrous iceberg (using FISA as a convenient example) only prolongs the actual problem and serves to mask its real causes, and potential remedies.

    The US needs to grow up. Obama can’t do that for you, you have to do it yourselves.

  31. 31
    Bootlegger says:

    @jprice vincenz: Where? Where? I need a good laugh.

  32. 32
  33. 33
    Rachel says:

    Changeroo: "Boo Hoo Hoo! Poor widdle Gleenwald, all betrayed by his idol. LOL"

    You’re not a regular reader of Glennzilla, obviously.

  34. 34
    Comrade Jake says:

    Wasn’t it not that long ago that the DOJ discovered the records on these detainees were in shambles? That they’re having a hard time even ascertaining who’s being held?

    I don’t know folks, I think what Greenwald is doing here is worthwhile, but I’m going to wait awhile to level judgment on the whole thing and suggest Obama is worse than Bush when it comes to handling detainees. That seems premature at best.

  35. 35
    jprice vincenz says:

    John, Don’t get all pissy and publish the instructions on how to insert links. I’ll just paste in the URL

    Here:

    http://directorblue.blogspot.c.....vania.html

    It’s the BAUGHT that killed me

  36. 36

    Funny that Greenwald doesn’t seem to link to the actual filing. But the SCOTUS blog does here with a much more indepth explanation of the Justice Department’s stance

    http://www.scotusblog.com/wp/u.....at-bagram/

    I love Glenzilla but he is just about ridiculous with his rhetoric in that post. If you look at the substance of the argument it has nothing to do with continuing Bush policy. It has EVERYTHING to do with

    1. Waiting to see if the other Judge was right about extending Habeus rights to the prisoners at Bagram which would set a precedent that would extend to more than just the 3 plaintiffs.

    2. To try to give the government time to finish their review of detainee policy at Bagram which they believed would be finished within 6 months when President Obama signed the executive order creating the Task Force to study it.

    Basically what the government is saying is that they haven’t had time to review all of the cases at Bagram yet and it would be nice to have that opportunity before the courts say all of the detainees have habeus rights and we get a mountain of litigation from those detainees asserting those rights. If you go to the actual link to the court filing the Justice Department points out that just because a detainee was grabbed outside of the theater doesn’t mean they didn’t commit crimes in the theater and then leave. It also talks about the problems that would occur if we were to capture suspects in Pakistan and then not be able to detain them in Bagram (which is in Afghanistan) because of these rulings. Please remember that fighting terrorists isn’t just the same as fighting normal crimes. Especially in a war zone.

    The key word in all of this is time. This isn’t Bush confident in his policies and telling the courts to get bent. This is President Obama reviewing the process so they can make changes going forward as soon as they have some recommendations. I understand that for whichever of those prisoners who might truly be innocent in Bagram and have been there for years that they want to be out yesterday. But on the other hand the government has to be careful not to open a pandora’s box whereby the bad get released with the good in the middle of what is truly a war zone.

    I guess Glenzilla will end up on the cover of Newsweek and have an appearance on Morning Joe soon since he has now said effectively that President Obama is worse than Bush but he is just about to over play his normally spot on hand with his rhetoric. And thats real.

  37. 37
    Libby says:

    @Comrade Jake: I get the "full plate" defense and I agree that he can’t fix everything all at once. But this is part of a larger discomfort I’m having with his whole "war on terror" strategy. He promised to end the Bush doctrine and embrace a new strategy that focused more on relying on diplomacy and narrowing the target metrics. So far all I’ve seen is some symbolic nods to that. Closing Gitmo and not calling it a war anymore is all well and good, but it means nothing if he continues the last regime’s policies.

    I don’t think he’s just like Bush, but I do think he’s going forward in Afghanistan/Pakistan with too many of the same tactics that failed in Iraq. And I don’t even see any token nods that he’s willing to dismantle the excesses of domestic surveillance. I think this is too important, not to put some pressure on him over it, if only to create some space so he can move to dismantle in the future at less poltical cost.

  38. 38
    wasabi gasp says:

    @El Tiburon: Until further probing, I’m willing to consider the dick has been spirit gummed on by her last lover and, for the sake of a long and healthy marriage, requires surgical removal by legislation/judiciary rather than a yank by the executive. But then again, dicks are out of my ballpark. Enjoy the honeymoon.

  39. 39
    Bootlegger says:

    @DanSmoot’sGhost: Fair points, but there are moments in history where one person, supported by a large mass of people, says "enough!" The change we believed in doesn’t have to be a complete transformation, simply choosing our beliefs over our ill-defined "interests" is a good start.

  40. 40
    jayackroyd says:

    In the long haul, though, it doesn’t matter. If Congress does not reassert its authority, then this is always going to be up to an imperial president to decide what laws he wants to follow. It should be possible to get some Republicans on board with enough Democrats to make this sort of thing clearly illegal.

  41. 41
    valdivia says:

    @sgwhiteinfla:

    thanks for this. very useful and illuminating in a way that Greenwald never is.

  42. 42
    cleek says:

    Greenwald has the details.

    i’m sure he does.

    but count me among those who knows that GG doesn’t have all the facts here.

    and put me down as someone who rolls his eyes every time he reads GG: the perpetual hyperventilation and borderline-paranoid doom-casting is just too much. frankly, he doesn’t deserve quite the authority bloggers have bestowed upon him.

    look at Obama and tell us if you see a man who is interested in some kind of imperial all-powerful, unchecked presidency. what in his background, his demeanor or his other actions make you think he’s that kind of guy ? what does your gut tell you about him? he’s a power-hungry authoritarian who is seeking to grab as much power as he can ? bullshit.

  43. 43
    Bootlegger says:

    @jprice vincenz: Hey, nobody baught me a flat screen. I’m still tubular.

    Thanks for the giggle. Got to run kids, its a nice day and the chores are piled up. I’ll drop in for some snark this evening.

  44. 44
    jcricket says:

    The US needs to grow up. Obama can’t do that for you, you have to do it yourselves.

    Given the outrage over the suggestions that we spend more money on the military, but on different priorities (ZOMG! MILITARY GETS LET OF AN INCREASE THAN IT REQUESTED! OBAMA IS SOFT ON DEFENSE!) it’s no surprise Obama’s not farther out in front on other national defense/secrecy issues.

    I don’t mind Greenwald’s criticism, or frankly any reasonable criticism from the "left" of Obama, that’s the dynamic that will keep Obama healthy – as I think the "left" has far more reasonable criticism than the "right" did of Bush (even the lord couldn’t help us if he listened more to those people).

    I just think it’ll take time, just like it’ll take time to reform the Senate of their obstructionism, and reform the Blue Dogs of their acceptance of Republican frames. He’s already repealed the global gag rule, started down the road to restoring our standing in the world, worked towards ending the war in Iraq (maybe not fast enough), repealed the ban on federal funding of stem cell research, hosted a seder, made it clear to muslims we’re not at war with them (which will have a long-term positive impact in reducing the number of potential recruits for terrorist organizations), and passed the biggest stimulus bill (with a huge tax cut) in the history of the US.

    Call me again in 3 years and let’s see how far Obama’s gotten. If he’s put the economy back on track, passed regulatory, tax, environmental and health care reform, ended DADT, undone most of the secrecy/exec power grab BS, restored America’s standing (or close to it) with our key allies, that’d be a insanely successful first term given the starting point. And then in the second term if he gets even farther down these paths, incrementally improving things all the while, and more importantly convincing the American public that we’re doing the right thing, let’s call that success. Along with that Democrats will likely get bigger house and senate majorities, more state legislative control and more governorships, and so forth. You really can’t ask for more if it happens.

  45. 45
    DanSmoot'sGhost says:

    @Bootlegger:

    Maybe. Not sure I agree with your premise in this post. But even allowing that there are such moments in history, I am not persuaded that this moment is one of those, at least not today.

    The moment for today is preventing an economic meltdown. When you are losing 25k jobs a day seven days a week, that’s something that threatens to smack this country back to 1930, and after that problem is dealt with, or maybe while, we have to do something about the healthcare trainwreck that is smacking families and business on a daily basis.

    Down the road a piece, maybe there is time and energy to solve all the other problems of the world. It took a lot of decades of neglect and shortsightedness to create them, I am not going to ask these guys to fix them all in a year, or even four years.

    I am not going to agree to government by blog, either.

  46. 46
    Comrade Jake says:

    @sgwhiteinfla:

    Excellent post. Thank you.

  47. 47

    @wilfred:

    We’ve already had Caligula

    that was clinton, right? because I can’t see bush having those white house orgies.

  48. 48
    TimmyB says:

    Obama isn’t perfect, from my point of view.

    Rather than hearing pressure from the righties 24-7 on how Obama’s a socialist, I’d much rather hear pressure from the lefties saying that he isn’t doing enough to reverse Bush’s policies.

    Let’s face it, if there is only pressure from the right, then Obama, like every other elected official who bends to voter pressure, will turn right. Thus, Glenn should keep it up.

  49. 49
    kay says:

    @sgwhiteinfla:

    Good for you. I just read the whole opinion Greenwald relied on, and I’m having a little trouble reconciling it with what he wrote. I’m not as well-versed as him in any of this, but I’m a lawyer and I can read.

    He seems to have skipped the jurisdictional section, for example. I’m not comfortable with how he’s presenting the state’s argument. I don’t know where he’s getting that. I don’t see it in the opinion he cited. I see it in the section he cited, of course.

    I have this problem a lot with Glenn Greenwald. I read his analysis, and then I read the opinion he’s relying on, and they don’t completely gibe. That’s okay for defense lawyering. It’s his job as an advocate. I don’t know that it’s okay for legal policy analysis. The two jobs are very different.

  50. 50
    DanSmoot'sGhost says:

    Let’s face it, if there is only pressure from the right, then Obama, like every other elected official who bends to voter pressure, will turn right. Thus, Glenn should keep it up.

    i understand the rationale for this view, and maybe even agree with it to a small extent. Sometimes.

    But if this issue is really about turning the entire ship of state onto a new, less bellicose, less secretive and more confident track in the waters of foreign and defense policy, then a better discourse is going to be needed, and boilerplate carping from either side isn’t going to produce that.

    Instead of focussing all our frustrations at the world we built onto one guy, Greenwald could just as easily turn his tiny light beam onto himself and then us and promote a call to better citizenship, rather than just feeding the pack of barking blogdogs and calling it "loyal opposition."

  51. 51
    Woody says:

    The "mistakes" are not Obama’s per se.

    They are OURS.

  52. 52
    valdivia says:

    @kay:

    exactly Kay. The problem, to me, seems to be that a lot of people read Greenwald and stop at that. They never read the actual case or anything more involved, they take his word and based on that go ZOMG! Obama=Bush.

  53. 53
    Svensker says:

    @Libby:

    What you said.

  54. 54
    Davis X. Machina says:

    Greenwald could…promote a call to better citizenship, rather than … feeding the pack of barking blogdogs and calling it "loyal opposition."

    If you’re good at it, and it made your name and reputation, why change now? People don’t work like that. David Ortiz doesn’t hit to the opposite field. Ray Allen doesn’t drive the lane.

  55. 55
    Libby says:

    @jayackroyd: That is at the crux of the problem. Congress, or more specifically the Senate, is completely broken to the point dysfunction.

    In general I would prefer ‘teh left’ spend more time pressuring them than criticizing Obama. In some ways I think we enable the power of the solitary executive by looking too much to that branch to solve all problems. That sort of expectation only reinforces the current imbalance.

    On the other hand, the public narrative is built with everyone’s voice and all POVs are necessary to create a well rounded debate. Unfortunately, there really isn’t a clear and simple path to lasting change.

  56. 56
    DanSmoot'sGhost says:

    It’s his job as an advocate. I don’t know that it’s okay for legal policy analysis. The two jobs are very different.

    That distinction (which is quite necessary) is one of things that our opposition on the right likes to use as a wedge in its relentless war against legal process and the courts. They love to blur that line and confuse the already confused base that they preach to.

    Too bad that GG has to be a victim of that same blurring, or more to the point, tries to make us further victims of that blurring.

  57. 57
    Comrade Jake says:

    @kay:

    I have this problem a lot with Glenn Greenwald. I read his analysis, and then I read the opinion he’s relying on, and they don’t completely gibe. That’s okay for defense lawyering. It’s his job as an advocate. I don’t know that it’s okay for legal policy analysis. The two jobs are very different.

    Let’s also keep in mind here that one of Greenwald’s jobs is to get people to read his blog. It’s not like he’s doing this for Salon pro-bono.

  58. 58
    kay says:

    @valdivia:

    Disclaimer: I defend juveniles in county court. I’m not an expert, by any means, and Greenwald is.

    I think I can read an opinion, though. I read a lot of them. Just my take.

  59. 59
    someguy says:

    What the government is saying is that they haven’t had time to review all of the cases at Bagram yet and it would be nice to have that opportunity before the courts say all of the detainees have habeus rights and we get a mountain of litigation from those detainees asserting those rights.

    That is such bullshit. Either they have constitutional rights or they don’t. What the government argument boils down to is, "it’d be really hard to figure out exactly how badly we’ve acted and are still acting, and that’s a headache we don’t need, so could you please just go on ignoring our human rights violations like you have for the past 8 years? Thanks."

    For our next trick: What Somali pirate disappearance? We don’t remember hearing anything about Somali pirates, much less their disappearance…

  60. 60
    valdivia says:

    @kay:
    yes kay I understand, I too read a lot of opinions (I do comparative const political analysis) even if I am not an expert. But to me there is always a sort of sleight of hand with Greenwald.

  61. 61
    Davis X. Machina says:

    That is such bullshit.

    Impeachment proceedings start in the House. Call your rep.

  62. 62

    someguy

    Really? Can you show where the government said that? Do you think that none of the detainees in Bagram are guilty? Do you realize that no detainee over seas in history has EVER had habeus rights before now? Please provide some context to your rant or at least try to quantify it. Because it comes off as you just repeating some shit you heard rather than talking about the new filing by the Department of Justice.

    I bet you think this case is about torture don’t you?

  63. 63
    someguy says:

    And what’s the problem with Greenwald? He was everybody’s hero until he started calling out Obama a couple weeks ago. We should applaud the guy for using the same tactics on Obama that he uses on everybody else. Unless you think that the nature of Obama or politics is that the stuff being characterized as misleading here ought to only be used on one’s enemies.

  64. 64
    Eric U. says:

    I didn’t imagine the Guantanamo mess would be cleaned up in the first few months. It’s another case where the Bushies shit the bed, and it can’t be un-shit. Some of these guys need to be tried, and it would be stupid to release them. The other 95% should be let go as expeditiously as possible.

  65. 65
    DanSmoot'sGhost says:

    @someguy:

    Unless you think that the nature of Obama or politics is that the stuff being characterized as misleading here ought to only be used on one’s enemies.

    It will be used by those enemies, for one thing. Our opposition thrives on the material we feed them. They thrive on any cracks in any set of assertions or beliefs. They trade on doubt, confusion. They loathe process and wage war on it. Their product is certainty, and they attack with anything that looks like a threat to certainty.

    But more importantly, the answer to your question is what I said at 50. Boilerplate "opposition" is not that useful at this juncture, and GG is certainly capable of doing better.

    Boilerplate opposition is what our opponents do. I think we are capable of something better than that.

  66. 66
    El Tiburon says:

    Comrade0

    Let’s also keep in mind here that one of Greenwald’s jobs is to get people to read his blog. It’s not like he’s doing this for Salon pro-bono.

    You obviously don’t read Greenwald much.

    I started reading his blog from day one. The reason he quickly became a superstar in the blogosphere is his astute reasoning and analytical skills vis-a-vis the law and just plain common sense.

    To accuse him of sensationalism is asinine. Me thinks his three NYT bestsellers and more to come have set him up pretty nicely.

    Finally, I’ll admit I’m not able to decipher the legalese so I mostly put my faith in Greenwald’s abilities. I’ve seen him attacked many times and he always rebuts and ultimately wins the battle.

    I don’t worship him. But he doesn’t put his pants on one leg at a time and I am sure he can fly like Neo.

  67. 67
    smiley says:

    This thread is about dead so sorry to go OT again. This, via Sully, is good.

  68. 68
    someguy says:

    @ sgwhiteinfla – I think the vast majority of them, like the vast majority of Gitmo detainees – are as innocent as can be, and that like the Gitmo detainees many of them have nothing to do with AQ, but were kidnapped by warlords for bounties, or at the wrong place at the wrong time. More on how we get most of our detainees here.

    The whole point of Gitmo and Abu Ghraib is to exercise hegemony. Doesn’t matter to the hegemon whether they are guilty or not. Yet to the detainee, who is tortured and locked up, it is kind of a big deal. Who gets hurt if they get a day in court? If they are guilty, they stay in custody – something that looks increasingly unlikely, given that the government loses just about every time its actions are challenged. You can not like it all you want but there’s a problem with these detentions and even our courts are recognizing this. After after 6+ years of holding people indefinitely, "we need some more time to figure out why we’re holding these guys" sounds just a tiny bit weak in a motion for more time. If you can’t articulate why you are taking a person into custody at the time you do it, and you can’t articulate a legally persuasive reason for holding them within a few days after that, then you probably shouldn’t do it. Why is it going to take 6 months or 3 years to figure out we should have released people years ago?

  69. 69
    Nancy says:

    LOL I voted for Obama because of what he said he believed in, not because of him, a person’s actions define him. I cannot defending Obama’s DOJ ACTUAL words and motives. Who dares argue in favor of Suspension of Habeas of Corpus indefinitely? Who dares argue that the Government CANNOT BE REVIEWED by Courts because of ‘state secrets’?

    Whoever does is defending the SAME EXACT THING Bush did–worse yet, you are using the same argument: ‘national defense’…

    yep, let us continue to kidnap people from around the world, throw them in Bagram with no ability to make their case, yep, let them rot forever without being able to see the evidence against them…

    IF these people are very dangerous terrorists, why is it SO HARD for the government to produce ANY evidence ..why do they say making them produce evidence of the guilt of these people before they torture them and lock them away for ever is a threat to our security? BS alert.

  70. 70
    MNPundit says:

    The habeas ruling actually has me neutral. We discussed this at length in the Terrorism and Law class I had last semester at my law school, and this was not what we had concluded in terms of how it would be decided for Bagram. It’s not a bad ruling but it was unexpected and it the Admin position on this particular thing is not totally unreasonable.

    So I’m willing to wait.

  71. 71
    Jess says:

    Everyone should be entitled to habeus corpus rights including the prisoners we capture. No time should be required in making the right moral decision!

  72. 72
    Nancy says:

    DanSmoot’s Ghost said:

    "Our opposition thrives on the material we feed them. They thrive on any cracks in any set of assertions or beliefs. "

    "Boilerplate opposition is what our opponents do. I think we are capable of something better than that."

    what the HECK are you talking about? Are you trying to paint those who oppose Obama’s blatant protection and continuation of Bush’s terrible policies as one and the same as ‘the opposition’ repubs??

    I chose to be a Democrat because i value free thought. How dare you say those of us legitimately upset at this blatant abuse of state power and protection and continuation of Bush’s previous UNconstitutional policies are ‘feeding the ‘enemy’ opposition’ What nonsense! You sound like you are using scare tactics to control our thought.

    Sorry to tell you, but yes, there are cracks in our beliefs, and the crack is being made by obama: between what he SAYS he believes and what he DOES. Don’t hate on those from your own party who point out the truth for what it is–or do we now hate the truth since we are the party in power?

  73. 73
    kay says:

    @MNPundit:

    Ambinder has a one paragraph analysis that addresses the state’s position more honestly than Greenwald does, IMO. It sticks to the pleadings.

  74. 74
    Nancy says:

    MNPundit,

    Is this what they teach you in law school now, to rationalize immoral decisions? How ridiculous to say prisoners in Guantanamo should be able to see the evidence against them and challenge their indefinite detention, while those in another black hole extra-legal prison in Afghanistan do not? Absurd! Great, when the prisoners on Bagram get habeas corpus, then the Obama is in his legal right to build another prison in Pakistan!?!? WTF? End the madness!

  75. 75
    cleek says:

    And what’s the problem with Greenwald? He was everybody’s hero until he started calling out Obama a couple weeks ago.

    he’s never been my hero. even when he was attacking Bush i found him to be too excitable.

  76. 76
    cyntax says:

    @smiley:

    Wow, that was full of win.

  77. 77
    Nancy says:

    TimmyB (#48)

    Exactly! Thank you! Do you guys even know your history? Example, MArtin Luther King went to talk to Johnson about civil rights. Johnson said, yea, i like it, i’m sympathetic, now MAKE ME DO IT!

    So, instead of using ‘insider’ tactics thinking he can sway the government (who WAS sympathetic to his cause) to act when there was so much pressure from the RIGHT, King went out, won grassroots support, marched, and forced Johnson’s hand to sign the Civil Rights Act–NO one man is going to right all wrongs, what Obama’s DOJ is arguing is WRONG–i’m not saying it is his fault, i know there is so much pressure on him from the military industrial complex and the established powers..

    Let us on the left organize and oppose it–Obama is an ally, he is sympathetic, BUT HE WILL NOT do the right thing on his own, there is too much pressure from the established powers, so the people need to SHOW how much our civil liberties, Constitution, and transparent, accountable government means to us.

    We on the left are not ‘loyal opposition’, we ARE allies working WITH obama to put the needed pressure on him to force his hand to do the right thing. It’s called lobbying and allies lobby all the time!

    I agree, if we let all the pressure come from the right, obama will move to the right, simple as that and all you haters hatin on Greenwald for speaking the truth, pull your heads outta the sand!!

  78. 78

    To recap everything I just read here:

    (1) I used to be a really insightful and sober writer (when I was criticizing Bush)– my entire character transformed on January 20, 2009, when I suddenly became a totally over-the-top, hysterical, slothful and rhetorically reckless purist (when, totally coincidentally, I began criticizing Obama for doing exactly what Bush was doing).

    It’s just like how, according to the Right in 2002-2003, Andrew Sullivan was a brilliant and inspirational writer — until the day he began criticizing Bush, and then he was suddenly a dementia-plagued, morally depraved hysteric.

    It’s amazing how people’s character and judgment changes over night based on whether they’re praising or criticizing a particular political leader.

    (2) We can’t possibly judge The President because he knows so much more than we do, has access to much secret information, has superior insight — thus: we must blindly trust his judgment, even more than our own.

    Besides, we can all just feel in our "gut" that Obama is a Good Person and would never violate the law or exceed the proper limits of his power — even when it seems like he is.

    I used to only read things like that on National Review and Weekly Standard; as of 1/20/09, I read it regularly here and on Daily Kos.

    (3) When Bush asserted the power to abduct people and put them in prison for life with no charges, he was a Constitution-hating tyrant.

    When Obama does it, he’s being really careful and cautious and doing it to protect us for really good reasons even if we can’t know what they are and he won’t tell us.

    (4) People like me who criticize Obama are just motivated by a desire to get on TV (just like Bush critics, said National Review, were motivated by a desire to sell books).

    It can’t possibly be because what he’s doing is actually wrong.

    And, somehow, it’s really good for the career of Obama critics like me to criticize him even though doing so prompts hordes of previously supportive people to intensely attack your motives and judgment; and, finally — most amazingly of all:

    (5) According to the Obama-justifying comment which John copied and pasted into the post, Obama isn’t really doing what Bush did in this case even though:

    (a) the Obama DOJ filed a 2-sentence brief in February saying they adopt the Bush position in full on the issue of presidential detention authority at Bagram;

    (b) the Pulitzer-Prize-winning Charlie Savage — who used to be beloved in the liberal blogosphere prior to January, 2009 — wrote that the Obama DOJ is arguing "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" (Savage probably just said that to get on TV and sell books);

    (c) This liberal international law professor expert, a long-time critic of Bush, today is mocking Obama for trying to transport Guantanamo to Bagram; and,

    (d) the entire brief Obama just filed does nothing but argue that the district court was wrong in ruling that Bagram detainees have the right of habeas review, and then asserts propositions of laws that would make David Addington and John Yoo proud, such as: "the Court’s decision threatens the public interest by sanctioning second-guessing of conclusions that are at the core of war-making powers — judgments as to the level of activity or association with potential terrorism and other activities that warrant detention of an individual so as to effectively subdue and incapacitate the enemy."

    So: the Obama administration is overtly defending the power of the President to keep imprisoned with no charges people who were abducted by the U.S. and flown to Afghanistan and kept there for 6 years with no charges. Obama refuses to give them a trial. The Obama DOJ is arguing that the courts have no right to interfere with the President’s decisions about detention. And they’re aggressively arguing in favor of one of the most extremist and lawless Bush/Cheney powers.

    But it’s all totally different when Obama does it. Even if we can’t see the differences, it’s probably because he knows more than we do and sees what we can’t see. And anyone who compares what Bush did to what Obama is doing here — Charlie Savage, Kevin Jon Heller, me — is justifiably risking their reputation and going way over the line!

    I hope I didn’t leave anything out. I probably did — there are probably lots of other reasons why it’s OK when Obama does exactly what liberals criticized Bush for doing, and I look forward to reading more of those reasons here.

  79. 79
    Comrade Mary, Would-Be Minion Of Bad Horse says:

    You can get all of Charlie Bookers’ Screenwipe/Newswipes shows here.

  80. 80
    Comrade Mary, Would-Be Minion Of Bad Horse says:

    Wow, what did I get plopped in moderation for? *ooker? *wipe?

  81. 81
    Zuzu's Petals says:

    @sgwhiteinfla:

    I hope you post that over at the GG comments thread. Worth a read by all the pilers-on over there.

  82. 82
    Maude says:

    @Jess: Bush denied habeus corpus for the captured detainees, not Obama.
    Obama has removed the enemy combatant status. Bush gave himself the power to accuse anyone, US citizen or not of being an enemy combatant and detain that person forever.
    The legal mess about "terror" will take a long time to clean up. It is a process, not a magic wand and in an instant, it’s all better now.
    If the US messes up this crucial phase of setting things to rights, it could come back and bite us.
    Obama is doing the right thing by using the 6 month review process to sort out this unholy nightmare.
    It’s not simple and it’s not easy.
    GG has not, as far as I know, ever defended a detainee.
    Blame Bush. Oh, and Clinton.
    Clinton set some of this into motion in the name of "terror".

  83. 83
    cyntax says:

    On the issue of time, it might help to keep in mind how much of a mess the Bushster left in his wake [emphasis added]:

    In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."

    Evidence gathered for military commission trials is in disarray, according to some former officials, who said military lawyers lacked the trial experience to prosecute complex international terrorism cases.

    In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."

    He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."

    [link]

  84. 84
    KRK says:

    @someguy:

    He was everybody’s hero

    Speak for yourself. He’s never been my hero. And you’ll note that other lawyers commenting on this thread have indicated similar long-time discomfort with Greenwald.

  85. 85
    Mnemosyne says:

    @Libby:

    In general I would prefer ‘teh left’ spend more time pressuring [Congress] than criticizing Obama. In some ways I think we enable the power of the solitary executive by looking too much to that branch to solve all problems. That sort of expectation only reinforces the current imbalance.

    That’s part of what’s driving me nuts about this whole argument. We were upset that Bush ignored the separation of powers and ran roughshod over Congress and the courts, so now we want Obama to … ignore the separation of powers and go over Congress’s head to fix it rather than wait for it to get a definitive ruling in the courts.

    If having a unitary executive is bad, it’s always bad, and we shouldn’t be insisting that Obama act like one just because the previous guy did.

  86. 86
    Davis X. Machina says:

    Has Greenwald called for impeachment yet? Because if he isn’t, he’s playing with it.

  87. 87
    KRK says:

    @Glenn Greenwald:

    To recap everything I just read here:

    I used to be a really insightful and sober writer (when I was criticizing Bush)—my entire character transformed on January 20, 2009, when I suddenly became a totally over-the-top, hysterical, slothful and rhetorically reckless purist (when, totally coincidentally, I began criticizing Obama for doing exactly what Bush was doing).

    You flatter yourself. Read the thread again. Some of us weren’t all that impressed even before 1/20/09.

  88. 88
    Common Sense says:

    @KRK:

    I dunno. According to Glenn @78 you all just loved him right up till Jan 20th. It’s only now that you are uncomfortable. Can’t you read what Glenn says is true?

  89. 89
    Mary says:

    Argh –

    Before talking about the facts that Greenwald doesn’t have, get a grip on what the cases are about at this point in time.

    Habeas.

    Not guilt or innocence, but the right to charged or released. Greenwald isn’t even beginning to say that any of these guys should or should not be released, he’s saying – and even Judge Bates has said – that they are entitled to a habeas hearing. Something Obama has said should be available.

    36 – I have read the motion and not only that, I read the underlying ruling.

    Here’s the case posture.

    You are not talking about people who were picked up on a battlefield in Afghanistan and held there (or any of the few thousand or so civilian sweeps in Afghanistan and Iraq). The case is specifically about 4 people (one of whom Judge Bates did not grant habeas rights) who were all picked up in rendition operations outside of Afghanistan. For three, that is uncontroverted on the record, for one there is some back and forth.

    So when you talk about unprecedented, let’s hit that button a little harder. Since when are people extrajudicially captured in foreign countries, not on battlefields, by the US, then SHIPPED TO AN ACTIVE BATTLEFIELD and under what damned authority? Without ever having a right to challenge that? There’s an unprecedented for you.

    It’s not like there a bazillion of these kinds of cases at Bagram. We have had so many other lovely destinations for our rendition operations, Jordan, Syria, Egypt, GITMO, assorted black prisons, Pakistan … So it is NOT a matter of having to sift and sort through files of every detainee at Bagram – it is a very limited number of "shipped in" detainees who are at issue in this case.

    And when you say:

    It has EVERYTHING to do with

    1. Waiting to see if the other Judge was right about extending Habeus rights to the prisoners at Bagram which would set a precedent that would extend to more than just the 3 plaintiffs.

    this is partly Glenn’s point and why he includes all the quotes from Obama as to how habeas SHOULD be granted and protected. There really shouldn’t be, based on Obama’s representations, any big question as to "waiting to see if [Judge Bates] was right" because the position Bates took is the position Obama told the Nation, in the orchestrated Democratic MCA surrender, he takes as well.

    And again, this is not about extending habeas to all prisoners at Bagram, but instead is about a very limited number of people not taken on any battlefield or in Afghanistan and instead illegally and extrajudicially shipped by the US into an active battle zone for detention. There’s no reason for a generalized Bagram "detention policy" approach to be finished (a policy which has as its focus what to do with AFGHAN detained persons captured IN AFGHANISTAN under various operations including home invasions) in order to address whether or not people illegally rendered into Afghanistan should have habeas rights (and be removed from the battlefield that they were unwilling taken to for that matter).

    That habeas hearing is NOT a guilt or innocence hearing so all this nonsense about whether or not Greenwald has all the facts or not is just pointless nonsense. He’s not saying he does have "the facts" Greenwald, Judge Bates, the Supreme Court and CandidatbutnotPresident Obama all have said that when the United States seizes someone in a foreign country and not in a theatre of battle, that person should have habeas rights. And habeas rights are not the right to be released – they are the rights to be CHARGED OR released.

    What Bates has said is pretty simple. It’s that the Supreme Court’s ruling in Boumediene – that you have to charge or release these people you pick up from around the world – should not be able to be evaded by picking up people from around the world, then "real fast and before anyone files for habes" shipping them to a war zone. If that doesn’t leap out as being a stunningly obvious position and one in which Obam should acquiesece PDQ, then we are in a sad situation.

    There is also the related issue vis a vis the Yemenis about the crazy-guy "star witness" for numerous GITMO detainees and who may well have been involved in the "information" used to seize the Yemenis shipped to Bagram as well. I won’t go into that here, but there are a lot of facts that are floating around, even though Glenn doesn’t have all of them (and I have less). But the ultimate guilt or innocence of a person has never been something that has needed to be predetermined to grant a habeas hearing.

  90. 90
    Mary says:

    oops – I didn’t seen Greenwald had posted at 78.

    So I won’t speak for him or his arguments, but I still hang in there with me and my arguments.

  91. 91

    According to Glenn @78 you all just loved him right up till Jan 20th. It’s only now that you are uncomfortable.

    I didn’t say "all." I just know that, on liberal blogs, the amount of criticism and accusations increased substantially in July, 2008 when I criticized Obama’s FISA/telecom immunity vote, and then in January, 2009 when I began criticizing the Obama DOJ.

    I’m sure it’s just a coincidence and totally unrelated to the fact that I was criticizing Obama rather than Bush. I probably just began developing some emotional problems and cognitive difficulties — and became desperate to get on TV — exactly during those periods that happened to coincide with my criticisms of Obama.

  92. 92

    Everyone should concentrate on Mary’s entire comment and this in particular:

    That habeas hearing is NOT a guilt or innocence hearing so all this nonsense about whether or not Greenwald has all the facts or not is just pointless nonsense. He’s not saying he does have "the facts" Greenwald, Judge Bates, the Supreme Court and CandidatbutnotPresident Obama all have said that when the United States seizes someone in a foreign country and not in a theatre of battle, that person should have habeas rights. And habeas rights are not the right to be released – they are the rights to be CHARGED OR released.

    The only "fact" anyone needs is the U.S. constitution — the President doesn’t have the power to abduct people and ship them off to distant lands and then imprison them indefinitely with no due process.

    Whatever "facts" there are about a particular detainees’ guilt or innocence gets determined by the court. That’s the whole point of a habeas review. As Mary says, Candidate Obama always understood that.

  93. 93
    demimondian says:

    @Glenn Greenwald: Fooey. First, if you expect scholarly disinterest here, you’re sorely misguided. Blog commenters are not legal scholars, for the most part, and those who are legal scholars aren’t going to post on the topic of the current Baghram debacle. Second, some of us have already taken a beating for calling Obama out on other topics, and have learned that the time is not yet ripe for such criticisms to be taken with grace. Third, the folks who aren’t going to take such criticisms gracefully *do* have a point; this is part of the procedural fidgeting that is a part of the court process.

    I agree with you that this is a poor omen for Obama’s true dedication to the rule of law. I can see some force in the argument that the strongest ultimate rejection can only come from the strongest possible argument, but there’s no evidence that argument applies; Obama and his DOJ haven’t made any gestures in support of such an interpretation, any more than they’ve offered any rhetorical support for the positions of people who argue that TARP’s continuance is merely giving the banks the best chance possible.

    That said, those who criticize you as thin-skinned are right — Jeebus, man, this is a BLOG COMMENTS SECTION. Don’t take it so seriously; your reputation is assured no matter what nonsense we spew here!

  94. 94
    Dick Hertz says:

    I think it is pretty clear that some people are hung on the horns of a dilemma-the angry pickle fork of Obama worship combined with a predilection for Kafka-esque legal bureaucracy. Glenn Greenwald is not mistaken and his sense of urgency comes from a sincere desire to see justice done in the face of a seemingly insurmountable blend of perfidy on one hand and hubris on the other.
    Arguing that we need more time to deal with the people we illegally hold based on blackly humourous legal justifications constructed by sadistic legal prostitutes like Bybee and Yoo because we claim to be following a just procedure is an atrocity. We can never determine who was guilty or what their alleged crimes were because records were not kept, the subjects were tortured in a fashion known beforehand to be tailored to forcing confessions (because we borrowed them from the Soviets and Red Chinese who used them to, uh, get confessions), and the taking of at least some of the subjects was likely a violation of the law, because the secrecy and lack of review of the legal justifications for the taking of the subjects was done in secret. Fruit of a poisoned tree.
    Struggle not with monsters lest ye become a monster; gaze into the abyss and know the abyss also gazes.

  95. 95
    Common Sense says:

    @Glenn Greenwald:

    I’m sure it’s just a coincidence and totally unrelated to the fact that I was criticizing Obama rather than Bush. I probably just began developing some emotional problems and cognitive difficulties—and became desperate to get on TV —exactly during those periods that happened to coincide with my criticisms of Obama.

    Nah. You were hocking books long before Obama was anything more than a long shot that gave pretty speeches.

    Look, I don’t think this is all about your ego. I don’t even disagree with everything you say. I completely agreed with you when you jumped on Obama for his FISA vote — it disappointed me and is still my biggest issue with the guy. However, I can completely understand why it might take longer than three and a half months for a new Justice Department to make sense of whatever mess the Jesus Freaks left it in previously. And why it might take longer than 14 weeks to separate the wheat from the chaff and determine who really is a direct threat.

  96. 96
    Mary says:

    42 – well, look at Obama and tell me if you see a man who has ever stated openly, as a candidate or as President, that we held innocent people at Guantanamo or Bagram? Ever mention Maher Arar? It’s not like there was not a Congressional hearing invoving Arar. The Kurnaz case and the first round of the Uighur cases were well before he candidacy even, much less his Presidency. Never, ever ever does he mention anyone at GITMO, black sites, Bagram, or prisons of our rendition/torture partners such as Syria and Egypt as being innocent. Even with the court cases, some like Kurnaz and Robertson’s first round of Uighur cases being years old b now, which found that we were holding innocent people – he never mentions that.

    That’s why I am not comfortable with just leaving the ball for him to pick up and run with at the "right time."

  97. 97
    SGEW says:

    [Notices that Glennzilla reads comment threads at BJ]

    Well. Rather glad I haven’t posted any of my half-baked legal analysis in here recently, especially in regards to the Obama administration’s inexplicable continuation of the previous administration’s legal theories. Yikes.

    Guess I’ll just stick to keeping my thoughts on national security policy, State secrecy, flawed prosecutions, and allowable powers of the executive branch close to my chest for now.

    [Goes back to rather good book on the fall of the Roman Republic. Consoles self with “at least we don’t have roads lined with executed slaves” rationale.]

  98. 98
    cyntax says:

    You know Glenn, I don’t really think that this is quite as all or nothing as it seems to be portrayed.

    No, everything Obama does now is not automatically OK; conversely neither are what we may see as his "failings" cause to say he’s worse than Bush. Certainly not yet. It really may be very difficult to discern which captives should be charged and which should be released, and as such this process may not go as quickly as we like. Perhaps that’s a bit of ruse on the Administration’s part, but to me it doesn’t seem like we’re past the point where we can say with certainty that they’re stalling. Though to your credit it does seem to me like something we should keep an eye on.

    So, personally, I don’t think you’re wrong to keep a light shined on this, but I’m not sure that the overly partisan tone of your rhetoric is persuading anyone that doesn’t already agree with you. And that’s fine if the purpose of your articles isn’t to persuade, but if it is…

    Anyway, kudos for taking the time to drop by and respond.

  99. 99
  100. 100
    Tsulagi says:

    You know, when Obama did his reversal flip on FISA I said I would give him the benefit of the doubt that his action was merely a gutless capitulation he believed would help his campaign rather than a belief his flip was in the best interests of the country. That if he believed his change was needed, he could go fuck himself.

    Looking more and more like that benefit of the doubt was misplaced. And I’m not going to supply him with any grease.

    Now in courtrooms not only seeking to preserve the expanded state secrets position of the Bush admin, a core support column for the unitary executive, but looking to expand it further as in the EFF case. Claiming all your communications belong to us (executive branch) and that even if obtained illegally and wrongfully used, you have no redress. Arguing that authority granted to them by…the Patriot Act.

    John Yoo is probably sitting at home thinking “Shit, why didn’t I think of that.”

  101. 101
    AhabTRuler says:

    @Glenn Greenwald: Here, let me help you with that (BTW, thanks for engaging reasonably):

    To recap everything I just read here:

    Consistently wrong since 2002.

    What, you thought it only applied to Cole?

  102. 102
    Just Some Fuckhead says:

    Obama shouldn’t be above criticism, fair or otherwise. I didn’t sign on for that. And I wasn’t calling GG a fucker with my first comment as someone thought.

  103. 103
    srv says:

    Glenn, you should comment here more. I really miss Al Maviva.

  104. 104
    Ed Marshall says:

    @Glenn Greenwald:

    If I find out we are still kidnapping people and dumping them at Bagram, that’s a different kettle of fish. The entire problem with what Bush did, is he set up a system where even if someone was the most dangerous, guilty, criminal on the planet you could never get a conviction because they were so flagrantly ill treated and abused.

    If this system continues to exist, you are right to freak out. I’ll freak out with you. I’d leave open the idea that this is a rather nasty time bomb that is going to take a bit of time to unwind.

  105. 105
    nepat says:

    Whoever said the road to hell was paved with good intentions nailed it – and effectively described the entire MO of folks like Greenwald. John C. nails it too in the title of this post: The Daily "How Obama is Failing Us" Post.

    Interestingly the attacks on Obama from the left come consistently from the same cast of characters: Greenwald, Dave Sirota, Jane Hamsher, Chris Powell (and the rest of Open Left), Paul Krugman, Digby, and Atrios. Through the miracle of the hyperlink, this small army of drama queens form a mutually reinforcing web of trumped up "dissent," drunk on their own self-regard. And the flood of hero-worshipping comments to their posts bolsters their sense of righteousness. During the heated bank bailout debate, Krugman practically sprouted a halo. But in a recent revealing slip, Hamsher revealed her inner Elmer Gantry by shilling for ad dollars. The sense of entitlement is impressive.

    I get the sense from the impressive John Cole that he’s reluctant to join in the gainsaying of the Greenwald crowd because, having once been a Republican, he understands more fundamentally what we have in a politician like Obama. Joining in with the critical choir is counter productive and no kind of long term strategy. Battles and wars and all that stuff.

  106. 106
    AhabTRuler says:

    I get the sense from the impressive John Cole that he’s reluctant to join in the gainsaying of the Greenwald crowd because, having once been a Republican, he understands more fundamentally what we have in a politician like Obama.

    I love this blog and I am very fond of Cole, but his credentials as someone who voted for Bush twice do not lend to his authority or the credibility of his judgment.

  107. 107
    demimondian says:

    @nepat: Fooey once again.

    Go read Greenwald’s piece in Salon. He’s right, and it’s nonsensical — and hypocritical — that Obama’s DOJ takes any kind of line against the habeas rights of these men. Greenwald’s description of the Buch DOJ as "treating this like an enormous game" is exactly right, and it’s simply true that *it is not* just a game. People are in prison, facing no charges, on our watch. That isn’t a game.

  108. 108
    bago says:

    Glenn is principled. I think people put him in a box when they discuss him because it’s easier to criticize a caricature of a commentator when you can easily put him into some sort of ideological role. However, he thoroughly researches his points and will sarcastically eat you alive if you exercise the rote role of standard ideological criticism. My mom, (a rush fan) doesn’t like reading him because he is so thorough and verbose. That is why he is valuable, because the next 3 arguments someone will make have already been defused in the writing used to express the original point.

  109. 109
    El Cid says:

    I don’t know the perfect way to argue for things you really support and against things you really oppose with regard to a politician who is more on your side than against you.

    I do know, however, that we would have been much better off having followed more of the policy prescriptions of the 1990s leftist drama queens than the modernizing Democrats so supportive of, say, banking deregulation.

    The road to hell may be paved with good intentions, but the heavy clearing and construction is done by a combination of lethal establishment commitment to power-favoring idiocy, greed, and an animated dislike of principled dissent.

  110. 110
    AhabTRuler says:

    My mom, (a rush fan) doesn’t like reading him because he is so thorough and verbose.

    Very true. In fact, the next person that complains that Greenwald is too prolix gets Noam Chomsky (the man, not his books) shoved up their ass.

  111. 111
    srv says:

    @nepat: John and most Democrats know that DFH’s are almost always right.

    Interesting how the "attacks" come from the same cast of characters… Wouldn’t have anything to do with consistency. Not something you real Democrats and Republicans will ever understand.

  112. 112
  113. 113
    El Cid says:

    @AhabTRuler: Is Noam volunteering for this, or is this a new way for him to make money outside of MIT, books, and speeches?

  114. 114
    nepat says:

    @AhabTRuler –

    I love this blog and I am very fond of Cole, but his credentials as someone who voted for Bush twice do not lend to his authority or the credibility of his judgment.

    On the contrary, whether it’s John Cole or St. Augustine or Arianna Huffington, the dual nature of the converted give their insights more credibility, not less. These are people who wrestled with their own principles and lost. Imagine what insights that’s got to bring!

    @srv –

    Wouldn’t have anything to do with consistency.

    A foolish consistency is the hobgoblin of small minds.

    @ El Cid

    The road to hell may be paved with good intentions, but the heavy clearing and construction is done by a combination of lethal establishment commitment to power-favoring idiocy, greed, and an animated dislike of principled dissent.

    It’s on the "principled" part of the dissent that we disagree. I just think they’re phonies who like to complain – which is pretty much all they ever do. You may call that "principled dissent." I’m more inclined to think it’s a personality disorder – or just rank opportunism. Luckily, in a democracy, we get to disagree!

  115. 115
    JD says:

    @GG

    As a practical matter, I don’t think you’re going to get too far with the hypocrisy claims, true though they may be. That is, I don’t think anyone’s opinion will be changed by your (correct) point that, when Bush did X and you attacked X, many people attacked Bush and praised you who now, when Obama does X and you attack X, defend Obama and attack you. While true, repeating this point only hardens the feelings of those who agree with you that the hypocrites on the left are unthinking Obama loyalists (and of course pisses off the Obama defenders). But looking at the specific claims made by those defending Obama — or reserving him the benefit of the doubt — I think there’s more mileage to be made in critiquing those specific arguments. In particular, many of them are saying that a) we can’t judge Obama, or his long-term strategy, from these relatively few acts, and b) it takes time for him to sort out the mess Bush has left. I know: your brain immediately fills with the arguments explaining why claims (a) and (b) make no sense — but that’s my point: argue with (a) and (b) (and c…z), not with the Jan 20 volte-face. Impugning motives is just not an efficient use of time, because it only hardens existing positions. I’m not asking for 100% efficiency, of course — impugn away — but don’t waste too much of your time on it. The flaws in (a) and (b) — though oft enumerated — are better targets for your blog-comment-thread forays.

  116. 116
    AhabTRuler says:

    @John Cole: To be fair, I have not seen you argue otherwise.

    @El Cid: Hey, desperate times call for desperate measures.

  117. 117
    poopsybythebay says:

    I read this the other day at Kos and I saved it. It is by Wmtriallawyer and it made a hell of a lot of sense to me so I am passing it on:
    Fact #1: This is a civil lawsuit for money damages and/or equitable relief. Plain and simple, the Plaintiff seeks monetary damages against the Defendants. I.e., you committed a wrong, and the only way to make up for that wrong is pay money. Or in the alternative, it seeks equitable relief — i.e., an injunction — to prevent a future wrong.

    Fact #2: The Motion to Dismiss was filed by the government Defendants in their official capacity. Two important points here. First, this is a Motion to Dismiss claims, or in the alternative, for summary judgment. I can tell you as a matter of legal practice, any time a government is sued, there is a Motion to Dismiss filed, primarily to see if you can "knock out" at least some of the claims, or if you get lucky, the whole lawsuit. Second, the "official capacity" part is key. Simply stated, DOJ is moving to dismiss Defendants "The United States of America," "President Barack Obama," "Attorney General Eric Holder," etc. in their official capacity. Official capacity is just like it sounds…you’ve been sued by virtue of the fact that a. you are a government agency or b. you work for that government agency in some official way.

    Fact #3: As a general rule, governments and government official have immunity for acts in their official capacity. This is nothing new. It is the concept of "sovereign immunity" which has been around for hundreds of years. The general rule is established so that Joe Blow cannot simply "sue the government" for every perceived wrong that government does, because it would not be in the public interest for ALL for the government, as an entity, to have to defend said lawsuits or pay out damages in its official capacity. However, and this is critical, this does NOT mean a Plaintiff can’t sue a government employee for wrongful acts committed in the scope of their employment in their personal capacity. Indeed, in the lawsuit at hand, DOJ makes clear that they are filing this Motion for the government Defendants sued in their official capacity, despite the fact that many, many more are sued in their official capacity. Keep in mind, there are immunities available to those in their personal capacity as well, which DOJ also raises. But those immunities are generally not as strong as the immunity provided for those acting in an official capacity.

    Fact #4: Asserting a defense in a lawsuit does not in any way equate official government policy. Trust me on this one. I’ve had to assert defenses to lawsuits early on in the stages of litigation, as is the case in the FISA lawsuit. And it does NOT mean in any way that it is some sort of policy declaration. It is doing what is necessary to defend my client from the relief sought by the Plaintiff. Plain and simple. And that is especially true at the Motion to Dismiss stage. Indeed, these issues are going to be litigated not only at the trial stage, but at the appellate stage. And believe me, DOJ is going to continue argue immunities, because that’s their job. Not only in this lawsuit but in all future lawsuits. It is their job not to create policy, but to defend their client. They are not simply going to roll over and say, "OK, you win, we’ll pay you a truckload of money." Not going to happen. And certainly not going to happen at this early stage of the game.

    Now, it has been suggested that someone the new assertion of sovereign immunity made via the Patriot Act, FISA, etc. is breathtaking and such, but I just don’t see it the way others do. I look at it from the perspective of the government lawyer, and if there is another argument to be advanced to defend my client on immunity grounds, even if that argument hasn’t been advanced before, I’m going to use it. And I’m reasonably certain that is what the DOJ attorneys are doing…their job to defend their client. It has also been suggested that Congress, in passing the telecom immunity in the FISA revision claimed "Well, you can always sue the individual government actors," and that somehow, this Motion goes against the grain of that claim. This Motion doesn’t change that one iota. Again, this is a Motion filed on behalf of the United States of America and related government Defendants, in their official capacity. If a Plaintiff finds that Wendy Wiretapper, working for NSA, violated a Plaintiff’s civil rights, that lawsuit can still continue, but still be subject to personal immunities for official acts.

    I am still wary of where this is going. Clearly, I’d like some more policy assurances from the Obama administration with respect to the wiretapping issue, and changes in the law.

    But you can’t blame the lawyers for defending their client. And you can’t translate what they are doing to defend their client as a policy decision. At least not yet.

    UPDATE: Some people have stated that "why doesn’t DOJ simply settle the case" or something to that effect. Just wanted to point out that this is the BEGINNING of the lawsuit, not the END. In fact, should DOJ’s Motion get denied, we have no idea where this lawsuit goes. There may be more incentive to settle at that point. Fact is, we just don’t know at this point. But I would NOT expect them merely to settle the case just off the bat. That is rarely, rarely done.

  118. 118

    huh. i am surprised to see that so many here want to defend the following: that obama should pay fealty to mush-mouthed middle-way broder-esque horseshit, rather than have a clear view of right and wrong. let’s see: on the one hand, having the right to know what you are accused of and by whom has been the center of western jurisprudence since runnymede. on the other hand, elites in DC don’t like poor people from the third world getting to enjoy said rights.

    yeah, it’s a tough one. as an average commenter on a blog though, i’m going to go with "supporting rich and powerful people’s self-interested viewpoints" over "having a fucking lick of common sense."

    see, here’s the thing: there’s some kid in bagram right now getting his life DESTROYED because he was in the wrong place at the wrong time, and to me that kid is just as important a human being as you, me, or barack obama.

    but not to you. to you, "let’s wait and see awhile about this whole habeas thing" that kid is just some abstract notion of how powerful people apportion justice. he doesn’t have a family in that conception, will never make an important contribution to the world. let’s just wait 6 months or so and see if this whole 800 plus year old habeas thing has legs, shall we?

  119. 119
    Mona says:

    @demimondian That said, those who criticize you as thin-skinned are right—Jeebus, man, this is a BLOG COMMENTS SECTION. Don’t take it so seriously; your reputation is assured no matter what nonsense we spew here!

    Oh get over yourself. Glenn is one of the least thin-skinned people on the planet. What he clearly is is angry that Obamabots do not understand what he wrote above, to wit:

    The only "fact" anyone needs is the U.S. constitution—the President doesn’t have the power to abduct people and ship them off to distant lands and then imprison them indefinitely with no due process.

    Whatever "facts" there are about a particular detainees’ guilt or innocence gets determined by the court. That’s the whole point of a habeas review. As Mary says, Candidate Obama always understood that.

    Got that? Candidate Obama held habeas as a core constitutional principle; President Obama thinks habeas corpus is trashable at the Executive’s whim — just like his predecessor. Adoration for your messiah, Obama, does not change that FACT.

  120. 120
    El Cid says:

    It’s on the "principled" part of the dissent that we disagree. I just think they’re phonies who like to complain – which is pretty much all they ever do. You may call that "principled dissent." I’m more inclined to think it’s a personality disorder – or just rank opportunism. Luckily, in a democracy, we get to disagree!

    Fair enough. I think you’re plain wrong about them not being principled and being phonies. The wisest people I’ve encountered over the last 30 odd years of crazy Nu-Right / Reaganite domination of policy have found themselves mainly in a ‘complaining’ position, and yet they were pretty much spot on.

    I learned a lot more about the world from them then I did from the people telling me about how I needed to think more about what should be done positively, though there were many of those too, given that I think the most important things we should have done over the last 30 years (or other time periods) was simply to do less wrong.

    I don’t think we so much have lacked positive ideas as were we completely dominated by those in favor of bad and immoral ideas. The current economic crisis is the product of undoing good ideas in favor of bad and malicious ideas. This debate about the treatment of detainees and accused terrorists and our adherence to our own laws and Constitution and values is now a condition of how, or maybe whether, to clean up after bad ideas.

    Of course, there’s a real incompatibility between the needs of being a haranguing columnist or speaker and a movement leader, organizer, or politician, but it doesn’t make writers or speakers wrong that their contributions may not make for good movements, organizing, or campaigns.

    Thankfully, given our gift of consciousness, we get to disagree.

  121. 121

    […] instead, finds them commonly expressed in Obama-defending venues and some liberal blogs.  Scan the comment section to John Cole’s post criticizing Obama’s Bagram position to see how frequently this mindset is now expressed to […]

  122. 122
    poopsybythebay says:

    I want to see if all of the same people who are screaming about Obama now are standing by him when he let’s one of the prisoners go and they come back and nuke a city because Bush and the rest of theocracy tortured them. So if you are asking if I can wait 6 months for Obama to figure out a cluster-fuck that the last moronic pig left him–I say, you damn right I can. It is utterly ridiculous to think that anyone could come in (remember they could not even find paperwork on these people) and figure out how to unwind this load of crap left by the "little man" and his "dick" in less than 6 months. I am well aware that they have families and they have had families for the last eight years and I do not remember hearing this much hand wringing about it up to this point so let’s please take a breathe and realize that Obama is doing what he can under horrible circumstances. I will be the first one screaming bloody murder if I think for one minute he is doing anything along the lines of what Bush was doing. I am willing to give him a little time–contrary to popular belief he does not walk on water…..

  123. 123
    TheHatOnMyCat says:

    To accuse (Greenwald) of sensationalism is asinine.

    I didn’t accuse him of anything, nor did he address my refutation of his point.

    The central point is, it took a bunch of presidents, congresses, and sixty years to create the war machine government we have. Neither Obama nor anyone else can walk into Washington, DC and try to pull single strands of spaghetti out from the tangled mess that is the war machine government and somehow start fixing this trainwreck. Without all the facts, which we (including Greenwald) do not have, we have no way of knowing how much worse, or better, pulling out a strand from the tangle might make the situation. It’s easy to write shit for Salon, and I would guess that it is a hell of a lot harder to be president of the mess we created. I give Greenwald no quarter here. As far as I am concerned he is just another nattering nabob, to coin a phrase.

    No matter the legal arcana involved here, no matter the rhetorical value of the arguments, expecting him to fix this disaster is just bone silly. Just dumb, and counterproductive on numerous levels.

    If the American people want a different kind of government they need to start figuring out how to build one from the ground up. Electing one president and then yelling that he hasn’t produced that result two months later is just bullshit, and it does not advance the ball, not a yard.

  124. 124
    Mona says:

    @demimondian

    Sorry, I did not read far enough to see that you agree w/ Glenn on the basic issue. But I am absolutely certain you are incorrect about the reason for his appearance here as purportedly being the by-product of "thin-skinnedness."

    Glenn links to John a lot, respects him, and shares some readership — it was his commenters who brought this thread to attention.

  125. 125
    Tsulagi says:

    but his credentials as someone who voted for Bush twice do not lend to his authority or the credibility of his judgment.

    That could be a datapoint. But in Cole’s defense, since I’ve been reading this blog, I recall him writing that even in his most wingnutty days when Bush would go all unitary executive, he would ask his likeminded friends “Would you really want Hillary to have that power?” Of course that would have gone over the wingnuts’ heads with a giant whooshing noise as they were certain they were in the beginning of a permanent Republican majority, that all intelligent and good Americans would become Republicans. The good guys. Permanent starbursts.

    Now when Obama seems to be on a course having decided that unitary executive stuff might not be so bad after all, hear some of the same wingnut thought. Certainties like “Don’t worry, he won’t abuse that power like those on the other side would; we’re the good guys.” And I really like this meme, “It’s grand strategy, he’s pushing the envelope hard to expand state secrets and executive power so he can later lose big in court.” Brilliant. Strategery. Didn’t Assrocket also complain people just didn’t see the genius of his guy?

    Would you really want Palin to have these unitary executive powers? Or someone like Cheney? Oh, that’s right, couldn’t happen as we’re at the beginning of a permanent Democratic majority. The good guys.

  126. 126
    cyntax says:

    @robert green:

    but not to you. to you, "let’s wait and see awhile about this whole habeas thing" that kid is just some abstract notion of how powerful people apportion justice. he doesn’t have a family in that conception, will never make an important contribution to the world. let’s just wait 6 months or so and see if this whole 800 plus year old habeas thing has legs, shall we?

    Paging Dr. Toulmin, paging Dr. Toulmin…

    Or it could be that there are a number of innocent people mixed in with some bad actors and trying to sort through the mess the Bush admin left to figure out who’s who isn’t happening quickly enough for you.

    Nah… that can’t be it. We’re all evil at heart and callous and we just can’t see it–keep going with that.

  127. 127

    whatever poopsy:

    habeas sucks. it allows bad people to go free all the time. being sentient and able to tie my shoe and talk at the same time i am aware of this fact. however, habeas is the underpinning for everything that our civilization is built on, so i guess that’s a trade off that i thought we had collectively made.

    clearly i was wrong, because whether the pants-wetters on the right or your example above (i’m assuming you are a liberal, forgive me if i’m wrong) you just have no fucking clue. none at all. rapists will rape, murderers will murder, bombers will bomb, all because of the presumption of innocence and the rights of the accused to see/know their accusers/evidence against them. it sucks. let’s chuck it and let great men make decisions based on their magic 8 balls of prescience, because if there is one thing i’ve learned from these past 8 years it is that Our Dear Leader is Never Wrong.

    you should move to myanmar/kafkashapsburg/cuba etc. and if that works for you good–you won’t be missed.

    what the fuck went wrong with this country?

  128. 128
    Just Some Fuckhead says:

    Yeah, the President just needs six more months. Where have I heard that before?

  129. 129
    omen says:

    i don’t if this has been posted already, but even greenwald paradoxically states he sees nothing wrong with obama taking time to review the material first:

    I don’t personally have any real objection to the Obama administration’s desire to have a few additional weeks to try to figure out how to manage these internal controversies and political storms over the memos’ release.  Though frustrating, short delays of this type are tolerable, even reasonable.  But ultimately (and sooner rather than later), full disclosure of these documents  — meaning with nothing other than the most minimal redactions to protect sources and identities of cooperating foreign agencies — is absolutely necessary.

    http://www.salon.com/opinion/g...../06/memos/

  130. 130
    cyntax says:

    @omen:

    i don’t if this has been posted already, but even greenwald paradoxically states he sees nothing wrong with obama taking time to review the material first

    Quick! Everyone back to Glenn’s thread to excoriate him…

    [looks around]

    Wait, where’d all the self-righteousing go…?

  131. 131
  132. 132
    cyntax says:

    @omen:
    Just seems a little ironic that after all the over-heated rhetoric on the thread about how giving the administration a few more months meant selling habeas corpus and our national soul out that Glenn would say it’s reasonable to give them a little more time.

    =)

  133. 133
    Hyperion says:

    @poopsybythebay: first, IANAL. however, i don’t see how your comment is connected to the thread. care to elaborate? isn’t habeus about criminal prosecutions?

  134. 134
    Hyperion says:

    @poopsybythebay: uh-oh you have just revealed yourself as a pants pisser. Ignore my request to elaborate in #132

  135. 135
    gex says:

    I can really see both sides of this. I want to scream when Obama makes a move that looks Bush-like. But I am willing to give him time to wind things down.

    My feeling is that Obama gave us a time-frame that he thought he’d need – announcing the shutdown of Gitmo in 1 year while stopping the torture immediately. So I will keep calling for bringing information to light, but I’m not going to go ape-shit about it until the one year mark is up.

  136. 136
    ricky says:

    If something violent happens toward Anyone connected with the Obama administration will it be OK to blame Glenn Greenwald? I mean this disappointment meme has reached a fevered pitch.

    Nah! I’ll just keep blaming Beck for Pittsburgh.

  137. 137
    Hyperion says:

    I note that no one defending the administration has engaged GG on the substance of his comment. why is that?

  138. 138
    kay says:

    @Just Some Fuckhead:

    That wasn’t my issue with Greenwald’s post. I had two: he interviewed defense counsel and didn’t link or quote the state’s brief, and he didn’t discuss the first portion of the opinion he relied on.

    I congratulated the lone dissenter for going to the SCOTUS link and looking at the source material himself, rather than relying completely on Greenwald’s analysis.

    I’m too old for hero-worship, whether the hero is Glenn Greenwald or or Barack Obama.

    I read Greenwald all the time, and he’s an expert, and, I believe, well-intentioned and honest. What I don’t do is make him the last word.

  139. 139
    Jrod says:

    Well, if the perpetrator is found to have a large collection of Greenwald books, and is found to be a commenter on Glenn’s blog who was constantly making arch statements about how "he’s gonna do something about this Obama problem" while the other commenters and Glenn himself egg him on, then sure. Greenwald will get some of the blame.

    Of course, nothing like that has ever happened, while it’s a regular thing for some murderous maniac to have a house full of Malkin books and right-wing bookmarks. Being fair-and-balanced requires that we spend as much concern on the imaginary leftist killers as we do on the real right-wing killers.

  140. 140
    cyntax says:

    @Hyperion:

    I dunno about anyone else, but I’m not looking to make a full-throated defense of the admin. Just saying I’m not yet ready to put them to the right of Bush and that taking a few more weeks to look over the materials seems reasonable (as Glenn put it himself) .

    Since we don’t seem to be at a stage yet where we have to take anti-podal positions, why make this an either or proposition?

  141. 141
    asiangrrlMN says:

    I like Glenn Greenwald and the rest of the lefty cabal. I think they are sincere in their beliefs and not doing it for fame or fortune. To me, what is disturbing is not whether or not Obama and Holder immediately release the prisoners; it is the fact that Obama embraced Bush’s measure of, "We picked them up anywhere in the world, shipped them to a war zone, and then they have no rights." I didn’t need to read Greenwald to know that I didn’t like this. I don’t see it as why Obama is disappointing us or failing us. I see it as this is what’s going on. These are the legal implications (from Greenwald). This is what should be done.

    We NEED the people on the left (and yeah, I am probably one of them) to keep up the pressure on the administration to clean up this mess. I would have been fine with Obama saying we need more time to think this over or something like that. Instead, the statement is that the administration agrees that we can hold anyone picked up anywhere for an indefinite amount of time without letting them do anything about it.

    So, if this is true, then the reporters held in N. Korea shouldn’t have any rights, either, correct? They were trespassing into N. Korea and did not desist when ordered. I don’t see how we can get upset about that if we are not willing to extend the same rights to our POWs.

    It’s a strawman argument to say that one of these men held, if let free, might come back and bomb us (in fact, they will be more likely to do so now than they had been before they were imprisoned). We don’t put people in jail based on what they might do (for the most part); we put them in jail for what they HAVE done.

    P.S. I read different blogs for different reasons. I would be disappointed in Glenn if he didn’t tirelessly hammer away at the legal-rights issues, just as I would be disappointed if I didn’t get my witty, insightful snark right here.

  142. 142

    […] instead, finds them commonly expressed in Obama-defending venues and some liberal blogs.  Scan the comment section to John Cole’s post criticizing Obama’s Bagram position to see how frequently this mindset is now expressed to […]

  143. 143
    DanSmoot'sGhost says:

    @Hyperion:

    Can’t answer for anyone else, but for me….

    1) He didn’t address my points, and
    2) He is making a lawyerly argument. It is probably a fine lawyerly argument, but I don’t have all the facts, there is not an opposing lawyer to represent the other side, and in my view, the real issue here is not disposed of by making any lawyerly argument on either side of the cited legal case. This case is not even the tiniest tip of an immense, intractable iceberg, and until that fact is addressed, there isn’t much to say that (a) hasn’t been said, or is (b) relevant IMV.

    Pretending that the tiny tip of the immense iceberg somehow represents any significant part of the real story here is so far from reality, I can’t even compute it. Focussing on certain veins on a certain leaf of a certain tree, and ignoring the vast forest around it, so that we can write clever Salon articles, or blog posts, doesn’t feed my bulldog.

    The government of the US is a vast war machine of intelligence, policy, law, practice, secrecy, deception, and abdication of responsibility. The congress does not even provide a check on the war powers exercised by the executive any more. The people have shrugged their shoulders at this stuff since 1948. Obama can’t fix it in two months, two years, or two terms. For that reason I consider this whole subject (the Salon article and its fallout) to be just SSDD material, and not helpful.

  144. 144
    kay says:

    @asiangrrlMN:

    Greenwald linked to the state’s brief in his update, so that’s fixed. I get nervous when someone says ‘the state says…" and the post is full of links, except for that one. I wonder where the state’s brief is.
    I don’t have any problem with him. I just don’t rely on one lawyer. He linked to another one, in his comments, so that’s two. There will be more weighing in, I’m sure, and then I’ll see what I think.

  145. 145
    Elie says:

    DanSmoot’sGhost@ #30 —

    Well said, well said. It is about US –and about what we need to do to right things. We want the easy way out (including me). We sat up here for 8 years and sat on our asses mostly except for banging keyboards on these blogs. Now, we have no patience for any process. Just do it Boy or I am taking my vote BACK. And do it now, Boy, I don’t have any respect for what YOU think — I think its x, y or z so DO it!

    I am almost to the point of not commenting anymore. It has little anymore pro or con Obama but more about the whiny, creepy people who really do not understand anything but top-down, autocratic process — process that says you do it or else…cram it down the opposition…who cares what the outcome to anything else is.

    The people who are like Bush are the people making these ridiculous assertions — giving up on the whole administration and all that has been done positively in freaking 90 days because of their own arrogant expectations and just frankly wrong attitude, wrong approach and incredible civic immaturity. They believe in the top down, my way or the highway philosophy…they just wanted a replacement that would do THEIR idea of right. They have no interest really — none, in a correct PROCESS or in patience or in complexity. They want a replay of Bush but with their guy in office…

  146. 146

    Glenn "Cato Institute" Greenwald is working overtime to establish his place in the corporate media.

    He’s even mastered the "both sides are just the same, and anyone who considers them different is a deluded partisan, unlike wise people like me" shtick.

    It isn’t possible that his criticisms of the Bush administration were solid, and his criticisms of what Obama has done 11 weeks into his first term are off. If they were, that would mean he can’t congratulate himself for not being a partisan.

    The next David Broder.

  147. 147
    valdivia says:

    @DanSmoot’sGhost:

    second your comment. I wonder sometimes why everything–the economy, the legal mess–needs to be addressed as if there is a magic bullet that fixes it all. While the principles may be straightforward and easy to support their application and consequences may not be as easy as so many make out to be. The process point–made by Elie–is also essential.

  148. 148
    Elie says:

    TheHatonMyCat:
    "If the American people want a different kind of government they need to start figuring out how to build one from the ground up.
    Electing one president and then yelling that he hasn’t produced that result two months later is just bullshit, and it does not advance the ball, not a yard

    Totally agree and so posted on a comment just previously. We are lazy. We want him to do it or this or someone else – Just-like-that — fix it. We don’t go into the details of the connecting issues or issues affected by x or y. We take each issue, one at a time and have an absolute judgement about it, up down, right wrong — do it! We don’t have the time or respect for "all the facts" — what the hell is THAT anyway. We have all the facts we need so screw that. The only relevant "facts" are that we want it done x and we want it now, damn it"

    .

  149. 149
    Laura W says:

    @DanSmoot’sGhost: Yeah, I’m with Elie. Don’t know who you are or where you came from, manifesting out of the otherworldly mists all of a sudden, but I’m glad you’re haunting these halls lately. I find myself agreeing with you an awful lot, which is truly frightening.

  150. 150

    I like when Greenwald complained that withdrawing a claim in a pending case was an effort to prevent the Supreme Court from ruling on it, thus preventing a definitive ruling on the President’s detention powers; then turned around a few days later and complained that leaving in place the Bush department’s filings and asking for a ruling on them was also an effort to maintain the President’s detention powers.

  151. 151
    DanSmoot'sGhost says:

    Full disclosure, TheHatOnMyCat and I are the same person.

    I post from a bunch of different machines, browsers, and ISPs because I am mobile and move in a weird computer world. I don’t try very hard to keep the handles in sync.

    Just so you all know. I am not doing a sockpuppet show here.

    Cheers,
    TZ

  152. 152
    Elie says:

    Valvidia @ 146
    "While the principles may be straightforward and easy to support their application and consequences may not be as easy as so many make out to be"

    Yes. What makes me crazy is that many here are definitely smart enough to know that.

    An anology comes to mind: We all know how f-up GM is — totally in debt, poor product market share, labor woes, poor management and leadership, etc. We know that if GM gets a new CEO — how long do you think that it would take to fix that puppy? And that is an autocratic system, not a representative democracy! 90 days and all GMs systems and policies should be ready to go with no problems, right?

    New flash folks; We have a mess — its going to take a while — the fix may not always be in place right away… got to build that fix, change the attitudes and pick the battles. And yes, many things that you may not realize, are connected. And yes, you may not realize that. Point two:
    Lots of people need to make livings now discussing this. Not much to discuss on the non criticism side is there. Who can just keep praising anything — too damned boring to read. Much better to be critical and the more critical, the more people are energized and hit my blog and all. Who wants to read boring stuff about the process of doing anything or "how to pass a law" civic bullshit. Outrage sells baby, so lets have it!

  153. 153
    DanSmoot'sGhost says:

    I find myself agreeing with you an awful lot, which is truly frightening.

    Well now that you know who I am, you must be beside yourself.

    it’s okay with me if you agree with me, I won’t use it against you later :)

  154. 154

    @Laura W:

    Yeah, I’m with Elie. Don’t know who you are or where you came from, manifesting from the mists all sudden and all, but I’m glad you’re haunting these halls lately. I find myself agreeing with you an awful lot, which is truly frightening.

    You don’t agree much with him when he’s a hatted cat, but, you agree with him when he’s a haunting ghost? LMAO!

  155. 155
    valdivia says:

    @joe from Lowell:

    good one. yes because it does not matter what Obama does–he will *always* be like Bush to Greenwald. Closing GITMO? not happening fast enough so yes he is just like Bush, etc etc etc

  156. 156
    poopsybythebay says:

    Sorry–I thought we were still talking about the FISA and State Secrets deal that Greenwald was so upset about 2 days ago, but my feelings are still the same in regards to giving Obama a little time.

    @Hyperion:
    I would love to know what I wrote in my answer to Mr. Green that made me a pants pisser? What is a pants pisser? I said in that post I will be the first person to scream bloody murder if I think Obama is repeating the Bush Doctrine. I believe that Obama may need a little time to unravel the hell he was given. I could be wrong and Obama may turn out be a liar and a jerk, but I am not willing to make that claim at this particular juncture and I am not sure how that would make me a pants pisser. Your turn to explain.

  157. 157
    Elie says:

    Poopsybythebay@ #155 —

    Maybe he had a problem with your handle and got poopsy all tangled up with pissing somehow…

  158. 158
    Elie says:

    DanSmootsGhostCatonmyHat:

    Cool! Like your thinking no matter what handle you use…

  159. 159

    In Greenwald’s defense, he’s consistently been even-handed enough to write positively about Obama when he’s done things like renounce the doctrine that the president has inherent authority to detain people regardless of Congress, or shutting down all the black site prisons, or forbidding security contractors from performing interrogations.

    Oh, wait a second, he never wrote a single post about any of those actions. No, but really, he’s incredibly fair and even-handed, and isn’t at all interested in pushing a false equivalence.

  160. 160
    valdivia says:

    @Elie:

    the point you made about some on our side (the left) wanting our own Bush is also very resonant for me. What I deeply respect about Obama is that he is making moves towards a long term return of our democratic institutions. If he were rashly waving a wand pulling on strands of this crazy machinery the Bushies put in place the whole structure might come down and then what? someone upthread said it well–if I have to wait a whole year or more to make sure Obama undoes the cluster-f*ck this is, hell yeah I am more than willing to wait.

    Edit: Joe form Lowell–another great point.

  161. 161
    Laura W says:

    @DanSmoot’sGhost: WHAT?
    Now I am forced to go back to hating you and disagreeing with every single thing you say.
    It was nice while it lasted, however.

  162. 162

    What drives me crazy about Greenwald is that he interprets everything Obama does in the worst possible light, even when there is considerable evidence for an opposite conclusion.

    For example, he orders black site prisons shut down, orders the CIA not to torture people, but in an ongoing case about suing CIA personnel, he doesn’t change a filing from the Bush administration.

    Could this be a place-holder position? Could it be Obama’s effort to get a definitive, binding ruling? Could it represent a position about the limits of sovereign immunity? Could it be the Justice Department lawyers doing their job and vigorously representing the interests of the taxpayers, like every other lawyer whose client is being sued for money, but filing every piece of paper that might make the case go away? Could he be making a judgement about the political price of going after wrongdoers being too high?

    No, of course not. Obviously, the only plausible explanation is that Barack Obama is passionately devoted to continuing policies that he…er…just forbade by executive order.

  163. 163
    Laura W says:

    @Little Dreamer: I agree with him when I agree with him, regardless of handle. Just like I do with you, regardless of your new handle.
    I knew who he was. Simply having fun on a slow Saturday night.
    As a matter of fact, I recall suggesting he adopt TheOfficialGhostOnThisBlog a while back.
    I ain’t as dumb as I write.

  164. 164
    poopsybythebay says:

    @joe from Lowell:
    You hit the nail on the head with Glenn, why he believes our feelings about the matter are somehow mutually exclusive.

    Also, it seems to me that when the villagers were no longer paying attention to him during his Bush Derangement Syndrome days and calling him a lefty loony it may very well have something to do with his present behavior.

  165. 165

    Instead of focussing all our frustrations at the world we built onto one guy, Greenwald could just as easily turn his tiny light beam onto himself and then us and promote a call to better citizenship, rather than just feeding the pack of barking blogdogs and calling it "loyal opposition."

    Great post. Totally agreed. I’m also wondering why Bush could do the BS he did for eight years with barely a whisper about dismantling the state secrets – didn’t Bush also promise transparent government? The Bush Administration wasn’t transparent at all.

  166. 166

    @Laura W:

    I ain’t as dumb as I write.

    Well, okay then! ;)

  167. 167
    valdivia says:

    @joe from Lowell:

    For example, he orders black site prisons shut down, orders the CIA not to torture people, but in an ongoing case about suing CIA personnel, he doesn’t change a filing from the Bush administration.

    Could this be a place-holder position? Could it be Obama’s effort to get a definitive, binding ruling? Could it represent a position about the limits of sovereign immunity? Could it be the Justice Department lawyers doing their job and vigorously representing the interests of the taxpayers, like every other lawyer whose client is being sued for money, but filing every piece of paper that might make the case go away? Could he be making a judgement about the political price of going after wrongdoers being too high?

    I have to highlight this because it is one of the best summaries I have seen about the problems of separating what happens going forward and the issue of prosecuting those who participated. The usual line on this latter issue is that is black and white and these guys *should* be prosecuted. And while I agree that it would be ideal to prosecute them the reality and price of making it happen are very different from the white and black the critics make it out to be. A similar issue is lustration in former dictatorial or communist regimes. It has taken them decades to sort it out but we pretend the US can just figure this out in a few months? The insidious thing about the rot the Bushies left in place is that it will take *generations* to fix it. That Obama is getting started, and on the most important issues, is already a huge step ahead.

  168. 168
    DanSmoot'sGhost says:

    I ain’t as dumb as I write.

    Thank heavens, neither am I as dumb as I write.

    Which is damning myself with faint praise, I know.

  169. 169
    Elie says:

    Valvidia —

    And I guess that is the long run game that I thought we were all on board with — the reinvigoration of our institutions and a reinvigoration of our participation in it as citizens — not just critics (we seem to have that part down), but in citizens who respect balance, due process and evidence or information.

    I am not a spring chicken. I have been involved in a fair amount of ecological stuff and local change that affects our environment. Working with and energizing citizens to empower themselves and grow to understand how to use power and learn the process is not sexy. We have had lots of one step forward, two steps back. Even with our victories, we have had some surprises happen pretty quiclkly where we have had to refight battles with people with interests we thought were friendly to us. All this is a long around way of saying, Life is complex. It takes a lot to make change and a lot to understand what and how to change it. Straight lines are not always the best way.

    We were able to get a storm water/water quality ordinance passed after a long haul taking 4 1/2 years. We ziggeg and zagged making coalitions with some of the weirdest cats at different phases of this. Sometimes we were in full retreat or felt everything was coming apart. But it DID finally pass. Now we are fighting to get it implemented even though it has a fee with it to fund many projects necessary to keep our Bay clean and filled with wildlife.

    The process is long and even longer when you think about the outcome you want…citizens maximally involved and aware of the needs of our bay and willing to pay to do things to keep it as healthy as possible. Its not over now and it will never be over because the citizens have to own the issue and own the solution and keep it going — forever!
    We can’t throw up our hands that our salmon runs are declining. We just have to keep our backs to the cart and keep pushing forward…

    Knowing what little I do of your background Valvidia from reading here, I think you know what I mean…

  170. 170
    Lish says:

    El Tiburon wrote:

    …this really hot chick makes eyes at you. I mean she is smoking. Nice rack, gorgeous hair, she even smells good… So you jet out to Vegas to get married and you find out she’s loaded and she doesn’t really care if you bag all of her hot friends… Then, when you hit the suite on your honeymoon and she takes off her wedding dress, as she removes her thong panties, a big dick and balls pop out from between her legs.

    Bullshit, and here’s why. If she’s already got a self-indulgent prick of her own, what the hell would she want with you?

  171. 171
    DanSmoot'sGhost says:

    didn’t Bush also promise transparent government? The Bush Administration wasn’t transparent at all.

    His dad ran the CIA. The Bushes are not about transparency. They are creations of the Cold War.

  172. 172
    valdivia says:

    @Elie:
    yes Elie. we are very much on the same page, even if I don’t have as much of a robust participatory background as you do (I have a very limited one, just not in the US). I really appreciate what you have to say and contribute here on the thread (not just because we agree!)

  173. 173
    Elie says:

    LauraW

    Yeah, I now recall TheOfficialCatonMyHat — too funny!

  174. 174
    DanSmoot'sGhost says:

    @Elie:

    The offical hat still posts. The official hat came from a thing where John was looking for camp followers and some of us wanted to be officials instead of sycophants. Just a job description thing.

  175. 175
    cyntax says:

    Another to thing to consider, along the vein of not rushing this, is that since the files and evidence on these prisoners is spread all to hell and gone, taking the time to gather it all isn’t a matter of simply helping the prosecutorial side. Hell, we’ve had military prosecutors quit some of these cases because they felt the deck was so ridiculously stacked against the prisoners. Having all the evidence in place should make these more just proceedings.

    So full disclosure of all evidence should help to establish not just innocence but also the legitimacy of the proceedings, which seems important too. We sure don’t want to repeat the Stevens’ fiasco in that someone goes free due to lack of disclosure or the obverse, that someone innocent gets convicted.

  176. 176
    Comrade Michael "Auric Goldfinger" Brown says:

    "Once is happenstance. Twice is coincidence. Three times is Enemy Action."

    So let me see. In the Tale of Obama and the State Secrets, so far we have encountered:
    Those pesky FISA Amendments
    And Jewel v NSA

    So how long do you think it will take for step 3? I give it until May Day.

    BTW: Greenwald is so not the point here. None of you here actually care about him or what he does. What you actually care about is: What is Obama’s policy on State Secrets? You already have 2/3rds of an answer, and you know it. And most of you don’t like that so much, you’re blaming the messenger.

  177. 177
    Laura W Darling says:

    @DanSmoot’sGhost:

    some of us wanted to be officials instead of sycophants. Just a job description thing.

    And some of us yearned to apply for the Darling positions.
    That was a fun weekend.

  178. 178
    adnoto says:

    Libby said: He’s got the political capital right now to end these practices and he’s not using it.

    Comrade Jake said: But Obama picks his battles. You can be upset that he hasn’t chosen to make this one of them (I am too), but I’m not sure that it’s necessarily on the same plane as the economy, health care, energy independence, etc.

    Picks his battles? So the rule of law and our fundamental core values as a nation, not to mention the lives of the potentially innocent people who have been locked away for years, are not as important – ops, sorry, not on the same plane – as the economy, health care, energy independence, etc.?

    Is this what passes for intelligent thought in the comments section of this blog? YHGTBFKM with that. Pathetic.

  179. 179
    occam says:

    I don’t know enough facts about this case to comment, but I lost a lot of respect for Greenwald when he went on about Steven Pearlstein of the WaPo being a prototypical example of MSM arrogance or some nonsense.

    It’s one thing to have a wrong opinion, but Greenwald was incredibly certain about something he seems to know absolutely nothing about (finance and business columnists). I doubt he had even ever read Pearlstein before and he made broad generalizations based on one column.

  180. 180
    DanSmoot'sGhost says:

    So the rule of law and our fundamental core values as a nation

    Sorry, no sale. Obama doesn’t charge at 60 years worth of dismantling the Constitution in favor of ‘protection’ from scary communism, terrorism, and whatever ism they wanted to scare you with …. and you are making him responsible for the nation’s core values?

    The nation chose its core values a long time ago …. protect us at any cost. And built the war machine to do it. And entrenched that machine and hooked it up to every power outlet in the power grid of DC.

    Find another strawman to set fire to. This one sputtered and went out.

  181. 181

    @ valdivia

    I’d just like to point out that I agree with you and Greenwald about wanting to see the torturers punished, and future torturers deterred. I hope we get there.

    What annoys me, though, is his implication, and that of other attention-seeking purity trolls, that not pursuing such cases, or not allowing them to go uncontested, makes everything Obama did irrelevant. That is, that unless Obama goes lockstep down the line with every single action Greenwald (and I!) want to see, and does so yesterday, he’s "just like Bush," and the actions he’s taken to end torture, to close Gitmo, and to come up with alternative procedures for the detainees we’re hold, are completely meaningless.

    I daresay that if the detainees Bush was having tortured in black holes in 2003 were offered the choice of their torture ending but their torturers not being subject to civil lawsuits, most of them would have little difficulty in recognizing that that would be a rather significant change for the better.

  182. 182

    Here is the central problem I have with his post today. He applied what Barack Obama said SPECIFICALLY ABOUT GUANTANAMO BAY and tried to paint it as Barack Obama being a hypocrite now because of the government stance on Bagram and being in his words

    The Obama DOJ is now squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions.

    But he never actually explained anything about the merits of the filing nor did he link to the filing itself. All he refers back to is a court filing about whether prisoners have habeus rights at Bagram. But that filing was literally two sentences which did not spell out the Obama DOJ’s reasoning behind their position. But the new filing has quite a bit of specifics that suggest that perhaps just a "he is just like Bush explanation doesn’t cut it.

    But there are many legitimate reasons, having nothing to do with intent to evade judicial review, why the military might detain an individual captured outside Afghanistan in the Bagram Theater Internment Facility, including, for example, the individual’s connection to the theater of war. Indeed, while this Court’s finding of jurisdiction rested on petitioners’ alleged lack of connection to Afghanistan, no record has been developed to support that critical link to the Court’s conclusion.

    Under this Court’s ruling, the military will be left with two difficult choices where an individual may be subject to longer term detention: (1) be prepared to provide individualized, fact-bound justifications in an Article III court for its decision to detain at Bagram any non-Afghan individuals captured outside Afghanistan and disclose all the information necessary to defend that decision; or (2) refrain from capturing a non-Afghan combatant outside Afghanistan, even if capturing him away from the safe havens provided by al-Qaida or the Taliban forces is consistent with the laws of war and in the interest of national security. And, detaining an individual in the country where he is captured is not always going to be an option because the military does not have detention facilities in every country in which it may capture individuals engaged in hostilities against the United States or our allies for a host of practical, political, and other reasons.

    Similarly, the military would be unable to move non-Afghan citizens captured across the border in Pakistan to the theater’s long-term internment facility at Bagram for security or centralized intelligence gathering reasons unless it is prepared to engage in civil habeas litigation as to those individuals. Drawing a jurisdictional line at the border of Afghanistan creates a disincentive to move to Bagram individuals captured in Pakistan, where there is neither a temporary screening and processing facility nor a long-term theater internment facility. This jurisdictional line also provides the enemies of the United States an incentive to conduct operations from Pakistan, using it as a safe haven and using the U.S. court system as a tactical weapon.

    Moreover, although this Court predicted that its ruling would impact only a small number of detainees – i.e., non-Afghans captured outside Afghanistan – the Government anticipates that many detainees will allege that they are situated similarly to these petitioners in order to gain access to an Article III court. Such an allegation appears to be sufficient under this Court’s ruling. Regarding petitioner Maqaleh, for example, the respondents have submitted a sworn declaration from the Commander of Detention Operations at Bagram, stating that Maqaleh was captured in Afghanistan. This Court nevertheless accepted as true Maqaleh’s bare allegation that he was captured elsewhere and on that ground denied the motion to dismiss. Thus, respondents are faced with the prospect of engaging in habeas discovery concerning place of capture in that case and in all others where non-Afghan detainees make similar assertions.

    Moreover, insofar as the Court’s ruling hinged not only on whether a non-Afghan detainee was captured outside Afghanistan, but on petitioner’s assertion that they “had no prior connection with Afghanistan at all” and, accordingly, that “the Afghan government has no interest in their detention,” Order at 24, 44, the Court’s ruling could invite extensive discovery into whether the individual has sufficient connections to Afghanistan to defeat habeas jurisdiction. A non-Afghan citizen captured outside Afghanistan may have carried out attacks in, or conducted operations from within, Afghanistan, activities that would plainly implicate the host nation’s interests.

    Finally, any potential for harm to petitioners in continued detention during appellate proceedings does not outweigh the need for a stay. First, the Government intends to seek expedited appellate review of the jurisdictional ruling in the April 2, 2009 Order. Second, the President has established, by Executive Order, a deliberative process to address questions concerning Executive detention authority and options. That Executive Order commands the creation of a Special Interagency Task Force to “conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counter-terrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.” Id. ¶ (e). The Task Force is scheduled to provide preliminary reports to the President and a final report by July of this year. Id. In particular, the Task Force will be reviewing the processes currently in place at Bagram and elsewhere, and will make recommendations to the President regarding those processes.

    Now maybe Glenn Greenwald has information that we don’t proving that Maqelah or any of the other petitioners were actually detained outside of Afghanistan. If so I would love to see it.

    Now one of the main reasons why the Judge in the case they are appealing did not dismiss the case is because even though the Government asserted that the 4 petitioners were either from Afghanistan or captured in or close to Afghanistan, because it was a motion to dismiss at that stage of the game the Judge decided to error on the side of believing the petitioners. Specifically

    http://www.scotusblog.com/wp/w.....4-2-09.pdf

    All four claim to have been captured outside Afghanistan and contest their designation as enemy combatants.1 Fadi al Maqaleh, a Yemeni citizen who was taken into U.S. custody sometime in 2003, filed a petition for a writ of habeas corpus on September 28, 2006. Maqaleh Am. Habeas Pet. ¶¶ 11, 14. He claims that he was captured beyond Afghan borders but does not specify where. Id. ¶¶ 24-25. Haji Wazir, an Afghan citizen, filed a habeas petition on September 29, 2006.2 Wazir Habeas Pet. ¶ 2. Wazir was captured in Dubai, United Arab Emirates in 2002 and has been in U.S. custody since. See Declaration of Jawed Ahmad ¶ 31 (attached as Exhibit 1 to Wazir Opp’n to Resps.’ Mot. to Dismiss ("Wazir Opp’n")). Amin al Bakri is a Yemeni citizen, captured by U.S. forces in Thailand in 2002, who filed a petition seeking habeas review on July 28, 2008. Bakri Habeas Pet. ¶¶ 2-3. Redha al-Najar filed a habeas petition on December 10, 2008. Al-Najar is a citizen of Tunisia who was captured in Pakistan in 2002. Al-Najar Habeas Pet. ¶¶ 12, 25.

    snip

    Respondents dispute some of the facts alleged in the habeas petitions. Although respondents do not contest any petitioner’s claim as to his country of citizenship, they do take issue with some petitioners’ statements as to the place of their capture. For example, respondents contest al Maqaleh’s claim that he was captured outside Afghanistan. See Declaration of Charles
    A. Tennison ¶ 20

    snip

    Although a court must accept as true all of petitioners’ factual allegations when reviewing a motion to dismiss pursuant to Rule 12(b)(1), see Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "’factual allegations . . . will bear
    closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a petitioner’s habeas petition must be construed liberally, and the petitioner should receive the benefit of all favorable inferences that can be drawn from the alleged facts.

    Now you can read on in the ruling to see just how important the fact that the court accepted as true that the petitioners (detainees) actually didn’t have anything to do with Afghanistan at all. In point of fact there was only one of the petitioners who was not afforded habeus rights. Guess which one that was……….You guessed it. The one who admitted to being from Afghanistan. Now I don’t know how guilty or innocent any of these men were and I honestly don’t think that Glenzilla does either. But its a lie that these men were lounging at the French Riviera when they got picked up. Maybe you could say the guy captured in Thailand, Bakri, was taken far from the battle field but thats only if you accept his story. But if the government can eventually prove these men were captured in Afghanistan, that in and of itself would probably reverse the Judge’s decision about granting them habeus rights and going by the Boumediene decision.

    And that brings us right back to the fact that there is right at this moment a Task Force reviewing the detention policies at Bagram that will be releasing its recommendations sometime in July. That is the BIGGEST difference Between the Obama administration and the Bush administration which saw absolutely nothing wrong with their detention policies. Look I will be the first to say that I don’t believe all of the people in Bagram should get habeus rights nor do I believe they should all be let go. I think what should be done is the Task Force should be given the time to make the right decision so we don’t see any of the people in Bagram end up in Taliban or al qaeda videos like we did with at least 2 or 3 of the detainees who were released under Bush. It is what it is.

  183. 183
    Just Some Fuckhead says:

    Teez, Obama isn’t being asked to fix your sixty year old strawman. He’s making the wrong choices about today’s issues that he could very easily get right if he cared to.

  184. 184
    Irrelevant,YetPoignant says:

    Free Leonard Peltier!

  185. 185
    adnoto says:

    @DanSmoot’sGhost:

    The nation chose its core values a long time ago …. protect us at any cost. And built the war machine to do it. And entrenched that machine and hooked it up to every power outlet in the power grid of DC.

    No shit. And that is just ok? So we give Obama a pass? Wasn’t he all about changing that? I thought Obama was all that? If he can’t do it no one can right? The hope pimp. Well he isn’t even making the most marginal attempt.

    Listen, you may have accepted your place, begging for scraps from the establishments table, but I haven’t. I’m not giving Obama a pass.

  186. 186
    DanSmoot'sGhost says:

    Wasn’t he all about changing that?

    No, and that’s the point of the thread in case you skipped the first 100 posts.

    Obama is faced with a 60-year clusterfuck of power and deceit and entrenched power. He is not going to single-handedly change that, and certainly not in a couple of months. Read the thread.

    I’m not giving Obama a pass

    Nobody cares if you do or not. The assertion you are trying to make by inference is nonsensical. It’s absurd. Nobody is signing up for that baloney.

  187. 187
    CaseyL says:

    Like a few other commentors here, I’m in the middle: angry at Obama for not immediately releasing-or-trying the prisoners at Gitmo and elsewhere; BUT also mindful that process is important and FFS Obama’s only been in office 3 months.

    I’m a bit of a process freak. I’ve worked for large companies where there’s been too little process, and too many decisions are made on an ad hoc, non-contextual basis. I’ve also worked for large companies that were absolutely larded with process, and what happens then is no one wants to make any decisions on an issue until it’s been hashed over to death in meeting after meeting after meeting.

    Remember this quote, from Thomas More in "A Man for All Seasons," that we kept citing during the Bush years?

    And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    Ironically, that quote is still applicable now, but from the opposite perspective. Obama did inherit a Stygian mess from Bush. As satisfying and as morally right that would be for Obama to just issue an Executive Order or some other fiat statement to release-or-try everyone still at Gitmo et al right now!, doing so would be just as ad hoc and legally non-contextual as the shit Bush did. It would be (keeping with the More metaphor) salting the earth to make sure the forest of laws couldn’t rise again.

    You don’t restore a legal structure by using the same tactics that shattered it to flinders in the first place; you do so by rebuilding the legal structure, court decision by court decision.

    Obama, I’m guessing, is at least as intent on restoring the law as he is on righting the wrong. He doesn’t ‘just’ want to release-or-try the prisoners; he wants a body of legal decisions describing and mandating exactly why and how – and he wants that (I’m still guessing here) so the law will stand against any future attempts to replay imperial law-by-fiat.

    Recall that one of Wingnuttia’s defenses of Bush Law was that no US law specifically said Bush couldn’t do what he did; that Geneva didn’t apply to ‘illegal combatants." For partisan purposes, the GOP and the Right declared that relying on the entire history of Western jurisprudence, that abiding by treaties which (they argued) did not spring from a specifically US source, were legally void in determining what US policy should be.

    Yes, that argument was reprehensible, despicable, sick and evil. But, having been said, having been made official US policy, Bush reified it: made the argument real by acting as if it was a legitimate one.

    In order to again make it unreal – make it NOT part of US law, policy, etc. – Obama believes he has to go through the process of reification in reverse, by asking the courts to repudiate Bush Law on each point, each specificity, and enshrine in ‘native’ US law such basic understandings of what a State may and may not do.

    (NOTE: I keep saying what Obama thinks, believes, and so on about undoing Bush Law. I don’t know the man, and I’m no mind reader. As a process freak myself, I’m just assuming that’s what another process freak would think and believe.)

  188. 188

    Well he isn’t even making the most marginal attempt.

    What a load of horseshit.

    I love this people who are so much more concerned about torture and black holes than you that they manage to either be completely unaware that Barack Obama has forbidden torture, shut down the black sites, ordered Guantanamo Bay shut down, forbidden interrogations by security contractors, and a few dozen other rather significant actions that – oh, yeah, come to think of it – these purity trolls were, themselves, saying were incredibly important…right up until the point that Barack Obama actually did what they wanted, at which point those actions became so insignificant that they’re worth neither noticing nor commenting on.

    "Ooh, look at me: Meet the New Boss…! THAT’S not change we can believe in! Get it? I’m so clever and independent!"

  189. 189
    dmv says:

    @129, 132:

    You both agree that it’s ironic, silly, whatever, that Greenwald is willing to give the administration a bit more time on the release of the torture memos but not on the habeas question. Let me see if I can come up with a reason why one might be unwilling to give more time on the habeas question than on the memos question. Hmmmmm. I’m going to go ahead and go with: the Constitution doesn’t have a Memo Suspension Clause. The Anglo-American legal system is not jealously protective of memo disclosure. The Great Writ doesn’t refer to what is Written in memos.

    What is wrong with you people? Seriously. We’re talking about human beings. Their lawyers are pushing the legal process forward, rightfully so. They were adbucted, rendered, and now are detained in Afghanistan. They want the right to contest their status. They want the right to be charged or released, not indefinitely detained.

    Obama did not send his DOJ lawyers into court to say, "Hey, boss judge, we need more time, Bush really fucked us over, and it’s complicated, and we need to sort it out." The lawyers trundled into court and said, "They have no rights, period. In fact, judge boss, you don’t even have jurisdiction to hear this, because these detainees have no rights." This isn’t an argument designed to preserve the status quo until the administration can sort out who’s who and what’s what. It’s an extension of the repudiated Bush Gitmo theory to Bagram, Afghanistan.

    I nearly jumped up and down in joy when Obama issued his openness memo at the beginning of his term. I give the man props where props are due.

    This is not about Glenn Greenwald. This is about 3 men who were abducted by the government of the United States of America, rendered into Afghanistan, detained there, and denied all their rights. This isn’t about Obama. This is about the Constitution. This is about what we stand for as a people. That’s why DanSmoot’sGhost’s argument is just a diversion. He blames the war-machine government, established and entrenched over 60 years. He wants us to see how impossible it is to change things quickly.

    Yet, imagine the following: Obama sends his DOJ lawyers into the court, and they say, "You know what, judge, these 3 particular detainees, who were abducted outside of Afghanistan and rendered into Afghanistan for detention, they do have a right to habeas review. We don’t agree that the United States of America may indefinitely detain people and deprive them of all rights in the process. We don’t know what we’re going to do with the rest of the detainees, the ones whom we captured in Afghanistan during our fight there. We can probably release some. Others, who knows. That determination will take some time to sort out."

    Imagine that scenario. What would have happened? We wouldn’t be having this conversation. I would not be so disappointed right now, either, both in Obama and in those who I believed stood for principles beyond, "Get Democrats elected."

  190. 190
    adnoto says:

    @DanSmoot’sGhost:

    Doesn’t matter if he can or not. It matters that he isn’t even fucking trying. You know, in the here and now, whilst he is actually President of the United States. Not only is he not trying, he is further enabling the entrenched powers that be. If "the thread" says anything other than that then this place is filled with clowns.

  191. 191
    Doug H. says:

    Doesn’t matter if he can or not. It matters that he isn’t even fucking trying. You know, in the here and now, whilst he is actually President of the United States. Not only is he not trying, he is further enabling the entrenched powers that be. If "the thread" says anything other than that then this place is filled with clowns.

    Facts on the ground, who needs those? I know the truth!

    But remember, its Obama who you can’t differentiate from Bush.

  192. 192
    kay says:

    @sgwhiteinfla:

    Go back to Greenwald’s post, sgwhiteinfla. Greenwald added a link to the state’s brief.

    I’m guessing in response to your post, earlier today, so good for you. You went to the source material, rather than accepting Greenwald’s argument blindly.

    You were right to question, too. Can’t just present one side. Anyway, link’s there now.

  193. 193
    Steve S. says:

    Glenn Greenwald

    To recap everything I just read here:

    Myself, I had to take Balloon Juice out of my regular blog rotation. The Kool-Aid shotgunners in the comments are easy enough to overlook, but Cole’s propensity to fly off the handle at the slightest provocation is just a bit much for me. I quit one day when he berated the circular firing squad, then a few posts later suggested he might stop reading Krugman. Hoo-kay. I commend you for your patience.

    Regarding the topic at hand, I take it as a given that any POTUS must be held to the highest imaginable standards, so long as he has the power to kill us all on a whim or even by accident.

  194. 194
    dmv says:

    Well, my other, longer comment is awaiting moderation for some reason.

    I just have to say, though, that I’m tired of hearing this argument about how entrenched the system is, how messed up things were when Obama stepped into office, etc.

    Those of us who think that this represents a huge moral failing think so not because Obama isn’t instantly, presto-change-o, making it All Better.

    We’re angry because Obama’s DOJ lawyers went into court and did not seek to preserve the status quo; they went into court and argued that Bagram detainees have no rights at all. That is not an argument meant to buy more time. That is an extension of the repudiated Bush Gitmo theory to Bagram, Afghanistan. That is more than just inheriting a giant mess. It’s an active assertion of the very executive power theory that I, and the rest of you, reviled for 8 years.

    It’s disgusting and tremendously disheartening.

  195. 195
    DanSmoot'sGhost says:

    Doesn’t matter if he can or not.

    Well, clearly it doesn’t matter to you. But your absurd suggestion is that he just walk in and start dismantling a monstrosity that has tied the hands of at least 11 presidents, involved us in several useless wars, and built an empire of secrets and deceptions and manipulations. Basically, by some sort of fiat, just make it go away.

    The people created this mess by insisting that they feel safe at all costs in the face of all real and imagined threats for six decades. The people are going to have to decide that they want something better, and start fixing it.

  196. 196
    adnoto says:

    @Doug H.:

    Facts on the ground, who needs those? I know the truth!

    But remember, its Obama who you can’t differentiate from Bush.

    Facts?? You’re fucking kidding right? You live in a fantasy land. You have what Obama has said and that is all you have. Is Gitmo closed? Are we out of Iraq? "America does not torture" I could link to BushCo saying those exact same words. You have no earthly way of knowing what Obama is actually doing and yet you give him the benefit of the doubt. Just like the wingers who give BushCo their undying loyalty. You people are fucking scary.

    I have paid attention to what Obama has actually done. The facts are that the Obama DOJ has fought every attempt at getting to the truth. He has covered for BushCo at every turn and has agreed with the assertions of all powerful state secrets. Obama is an establishment stooge.

  197. 197
    DanSmoot'sGhost says:

    so long as he has the power to kill us all on a whim or even by accident.

    Well, it was fear that drove the country into the ditch of war machine madness. Fitting that fear would be the motivation for trying to dig it out. So fine, you fear the war machine. That’s a good sign.

    Just don’t sit there and wait for somebody else, like Obama, to fix it for you. He didn’t create the problem, and he doesn’t have Superman powers to fix it. The sooner the people stop stamping their feet and passing the buck, and take responsibility for their own country, the sooner it will start to change.

    You can start with opening a conversation with your congressman. Suggest that congress accept its constitutional responsibility for declaring wars and checking the executive. Until that happens, nothing important is going to change.

  198. 198
    DanSmoot'sGhost says:

    If "the thread" says anything other than that then this place is filled with clowns.

    Not sure how you scan that sentence, but anyway, the thread says a lot of things, and I doubt that you have read most of them.

  199. 199
    CaseyL says:

    We’re angry because Obama’s DOJ lawyers went into court and did not seek to preserve the status quo; they went into court and argued that Bagram detainees have no rights at all. That is not an argument meant to buy more time. That is an extension of the repudiated Bush Gitmo theory to Bagram, Afghanistan. That is more than just inheriting a giant mess. It’s an active assertion of the very executive power theory that I, and the rest of you, reviled for 8 years.

    There is nothing in Obama’s past history, his myriad writings, anything he’s ever said or done that indicates he wants, likes, approves, or has anything but contempt for the kind of immoral, unethical, anti-Constitutional thinking that undergirds Bush Law.

    The DOJ attorneys went into court making the same arguments that Bush’s DOJ made because that is the law as it currently stands. Yes, there have been Court decisions that knocked down bits and pieces of Bush Law. But SFAIK there has not been a Court decision that overturned, repudiated, and threw out the entire edifice of Bush Law. That might be* what the DOJ’s after now, and they have to start by asserting the law as it stands.

    *I admit quite freely I’m hoping this is the case. But, again, based on everything we know about Obama’s legal philosophy, there is nothing to indicate he wants Bush Law to survive.

  200. 200
    adnoto says:

    @DanSmoot’sGhost:

    The people created this mess by insisting that they feel safe at all costs in the face of all real and imagined threats for six decades. The people are going to have to decide that they want something better, and start fixing it.

    Agree completely. And we can start doing that by holding Obama accountable for his actions correct? Obama doesn’t deserve a pass more than you or I do does he? Is he one of "the people" or not? We are to hold him blameless while he sits at the head of the table? Why are you defending him? You seem to know the score. Just doing it because you are a life long Democrat or what?

  201. 201
    dmv says:

    The DOJ attorneys went into court making the same arguments that Bush’s DOJ made because that is the law as it currently stands.

    Wrong.

    Boumediene said that Gitmo detainees have habeas rights.

    Judge Bates held that the reasoning of Boumediene applies with equal force to the three detainees at issue in the case before him.

    The DOJ has sought leave to appeal that decision by Judge Bates and a stay of proceedings in the district court while they pursue their appeal, because the administration believes that Judge Bates is wrong. The administration is asserting that Bagram detainees have no rights.

  202. 202

    kay

    I was referring to my previous take on Glenzilla’s post. I saw that he had added the link and responded and thats why I came to respond. Notice that he still never addressed anything in the new filing instead relying on the two sentence filing of a month ago to assert that President Obama is "to the far right" of some Bush appointee judge which really is a load of bullshit. How can you rail against a new filing from the DOJ without ever even commenting on its merits? Its funny that nobody ever notes that the same Judge refused habeus rights to one of the petitioners nor why he did, because he was from Afghanistan. Just that nugget along with the fact that the Government asserted previously and in the new filing that at least one and probably more of the remaining 3 petitioners were caught in Afghanistan shows that if the Government actually were afforded the chance to prove it and were successful in doing so it would have more than likely changed the Judge’s ruling a month ago.

    I also felt it disengenuous that he compared what then Senator Obama said on the campaign trail specifically about GITMO to impugn his credibility wrt Bagram. If anybody can pull up quotes of President Obama railing against Bush’s policy wrt Bagram please give me the link. Otherwise the two are not the same and shouldn’t be used as such to try to imply that President Obama is a hypocrite.

    By the way I still love reading Glenzillas blog and I still respect his opinion, but the one thing that I take issue with him along with others in the left side of the blogosphere is the inability to ever admit when they are wrong. Sooner or later it always catches up with you. Always.

  203. 203
    cyntax says:

    That is an extension of the repudiated Bush Gitmo theory to Bagram, Afghanistan.

    Well you’re obviously ready to make that determination, and I’m not ready to yet. But since you’re already there, now what? I guess one approach might be to try build consensus… oh wait, that doesn’t seem to be what you’re doing. So what’s your purpose?

  204. 204
    kay says:

    @CaseyL:

    Well, there’s another reason. It’s in the state’s brief. I’ll let you judge its validity.
    One of the things they are arguing is that if they extend the right to challenge a detention to prisoners who were taken to Bagram (so, those who were transferred from Cuba) they will not be able to hold prisoners taken "from the battlefield" in Pakistan, at Bagram, without a detention hearing.
    The "battlefield" distinction is important. Greenwald doesn’t reach it, because it isn’t relevant to the 4 petitioners, but the state’s lawyers have to consider the ruling as it applies going forward, to the war in Afghanistan.
    Which, as you know, we are calling Afghanistan/Pakistan, and we’re doing that for a reason.
    The lawyers for the 4 petitioners have an absolute duty to get those guys to a hearing, and screw the precedent. That’s the job.
    The state’s lawyers have to think further than that, to what any ruling will mean to the AfPak detainees picked up in either Afghanistan or Pakistan (battlefield distinction!) and held in Afghanistan, because that’s THEIR job.

  205. 205
    Elie says:

    Adnoto @185 —
    Nice try. So, Obama is supposed to be in charge of YOUR revolution?

    NOT on YOUR timetable and NOT what YOU want — what is best on balance for our nation and maybe NOT in the time YOU want to keep.

    Because the issues are important and have intertwinned much of our core values, does not mean that your purist and overly simplified interpretation gets to have priority. Get in here with the rest of us — but plead your case — don’t just get up here and tell US that he or we should think your way because its right and because its SO right that no timing, no other interests need be considered.

    Bullshit to that.

  206. 206
    dmv says:

    @ cyntax

    Well you’re obviously ready to make that determination

    What determination? I’m not sure what you mean. (I claim sleepiness if it’s super obvious, and I’m missing it, anyway.)

  207. 207
    DanSmoot'sGhost says:

    And we can start doing that by holding Obama accountable

    Uh, no. You can start by working at the grassroots level to build a political base for a less bellicose, more open, and constitutional government (one that has a congress which actually asserts is sole power to declare war, and takes that power back and uses it judiciously). One that reins in the NSA and the intelligence-defense power structure and keeps it in check. One that stops trying to gain power and govern thru fear of real or imagined threats.

    One that rejects policies that came from the Cold War period.

    One that puts the power back into the hands of the people, where it belongs … a people that is not afraid of the world, and isn’t reluctant to take responsibility for the country it asks for.

  208. 208
    dmv says:

    @ kay

    The state’s lawyers have to think further than that, to what any ruling will mean to the AfPak detainees picked up in either Afghanistan or Pakistan (battlefield distinction!) and held in Afghanistan, because that’s THEIR job.

    No, that’s not the case that they’re arguing. If they want to make that argument, they should make that argument. Judge Bates was careful to say that his ruling was a very narrow one, limited to the three detainees at issue. It’s standard trade in lawyering to distinguish cases on their facts. Taking prisoners you captured during or in a combat situation from Pakistan into Afghanistan for detention is thoroughly distinguishable from rendering people not captured during combat operations into Afghanistan for detention.

  209. 209
    Phaedrus says:

    Read most of the thread and I don’t get it.

    Seems like Obama had several choices.

    a) He could follow his campaign rhetoric and argue against indefinite detention without cause. This is what Glenn wants.

    b) I’m not a lawyer, but it seems like he could let Bush’s arguments stand or withdraw them or ask for more time to consider them. He’s done this a bit – and this seems to be what most of the Obamabots would like to think is happening

    c) He could endorse and continue the worst practices of the Bush Admin. This seems to have been what he’s done. I don’t know how this is defensible by anyone who believes in the rule of law.

    Like his earlier stance on FISA, he promised to filibuster, didn’t follow his promise, but then he didn’t just abstain, he actually voted FOR immunity. That’s going above and beyond and that equals support, not equivocation – and I think that is the broader point Glenn is trying to make.

    No one thinks he can fix it tomorrow. But he’s actually endorsing these actions when he doesn’t have to. If he were truly stalling or hoping the courts will decide, there are other actions he could have taken.

  210. 210
    cyntax says:

    @dmv:

    This statement of yours turns on your interpretation of the DOJ’s arguements:

    That is an extension of the repudiated Bush Gitmo theory to Bagram, Afghanistan.

    I know you’re presenting it as a fact, but is your interpretation [and the others who agree with you]. So if this is what you believe to be true, now what? Are you trying to convince the rest of us to share your views?

  211. 211
    adnoto says:

    @Elie:

    Bullshit to that.

    Bullshit to that?

    Bullshit to you. If we keep listening to people like you there will never be significant change. Your wait and see attitude is what keeps us enslaved to the establishment. I work under the assumption that Obama is establishment. Given the way he has started, I will ride his ass and your ass for as long as it takes. Bullshit to YOUR timetable.

  212. 212
    Arun says:

    Nobody is asking Obama to do the impossible.

    Like cutting the budget deficit in his first year in office. Or fixing all that is wrong with military procurement and contracting.

    These things have an inertia of their own and take time to get moving in a different direction.

    But here Obama is telling the court, I agree with Bush that the President can "disappear" someone. All he had to do was abjure that argument. He could have said, "we ask for the indulgence of the court, having inherited a mess of illegalities, we need six months to set up a habeas hearing for so-and-so."

    That is not what he did.

  213. 213
    adnoto says:

    @DanSmoot’sGhost:

    So that’s it huh? Obama is to be held completely blameless? We all can (and I do as it happens) participate in several "grass roots" movements for change. That still doesn’t change the fact that Obama is screwing "we, the people." You want to ignore it and give him a pass. That’s up to you. I’m not going to.

  214. 214

    dmv

    Actually you are wrong. Its not whether the detainees have ANY rights or not. Its whether they have HABEUS rights or not. And it all comes down to whether section 7 of the Military Commissions Act is unconstitutional or not when applied too the detainees at Bagram. It was judged unconstitutional by the Supreme Court in the Boumediene decistion to the detainees at GITMO because of 4 different categories that they evaluated. Judge Bates broke it down into 6 categories two of which being where you are from and where you were detained. Because obviously none of the GITMO detainees were detained there and because none of them were from there along with the fact that the US govt controls GITMO the SCOTUS decided they had habeus rights. That was not some blanket decision. There were clearly standards set that had to be met in order for detainees abroad to be granted habeus rights and the Obama DOJ is asserting that the specific detainees that are petitioning do not meet that standard.

    http://www.loc.gov/rr/frd/Mili.....09-366.pdf

  215. 215
    kay says:

    @dmv:

    I think you’re missing Pakistan. If they pick up a person in Pakistan and take him to Bagram, Bate’s ruling covers that person. That’s a problem for the state, going forward, I would think.

    Can they extend the "battlefield" designation to Pakistan? I don’t think they can, because as you know we are pretending that the "battlefield" designation is limited to Afghanistan.

    But is it? Is that why we’re sending drones into Pakistan? I don’t know about you, but I listened closely to Obama during the campaign. I knew he was extending the battlefield to Pakistan. He already has.

    Look, I don’t usually argue state side. I do LOOK at the state side, however. I don’t assume it’s completely without merit.

    I will wait. I don’t have enough information.

  216. 216
    Elie says:

    Kay 204 —

    Wow — I appreciate that insight…its one of those very core important mitigating facts..

    I guess what I ask so many up thread with a clear idea of the "right/wrong" of things — How do you govern? Do you see our choices and our political reality as separate, easy to differentiate columns of decisions?

    It seems to me more and more, that you all want "the decider" in place, only literate and articulate, but nonetheless a "boss" to make things right through executive power rather than the messier rightness that comes from many forces pushing in — from the people, from the correct structure of the institution and from the morality of the situation. You want it simple. Sometimes it is. I think that we have had some really important decisions that form the skeleton of that righteousness. But can we at least address the possibility that there is a more complex argument around various decisions than right or wrong in the short term?

    Ideologues hold to ideology no matter the facts on the ground. Is that what many of you want? If so, you are just Bush by other means.

  217. 217
    dmv says:

    @ cyntax

    Ah, I see what you’re saying.

    I don’t think it’s just one of several possible alternatives interpretations. I think it is a fact.

    The Bush theory was that habeas would not run to Gitmo. Therefore, detaining people in Gitmo would keep those people outside the scope of the Great Writ. As we know, that theory was repudiated in Boumediene.

    Judge Bates held that habeas runs to Bagram, at least for three detainees who were abducted (not captured in combat) and rendered into Afghanistan for detention at Bagram. The Obama administration is claiming that habeas does not run to Bagram, not for these detainees, not for any detainees, because Afghanistan is an active combat zone, outside the jurisdiction of the federal courts.

    That’s not my argument. That’s Obama’s argument. How is that not an application of Bush’s theory to Bagram? It seems pretty straightforward to me.

    So you ask a fair question: now what?

    See, I do believe Obama is far more open and responsive than Bush ever was. I believe that if there is enough pushback against the DOJ’s position, we can change it. But even if I didn’t believe that, I would certainly not consider acquiescence an adequate alternative.

  218. 218

    Is he one of "the people" or not?

    Interesting question. There’s just one problem, as the executive of the national government, while he is a citizen of the country and was once one of "the people", he is now in the particular position of being one that we would need to hold accountable if he were to go nuts with executive power the way say one George Bush, Jr did.

    Obama has been in office for a short time, give him some leeway and let him figure out the ropes before we start holding his feet firmly in the fire. If you want to lynch someone, go lynch the person who put is into the mess Obama is now saddled with getting us out of. Let the man do his job, and let him grow into this presidency and give him some fucking room. Look how much room Bush had? Why weren’t you here over the last eight years complaining about that shit?

  219. 219
    DanSmoot'sGhost says:

    If he were truly stalling or hoping the courts will decide, there are other actions he could have taken.

    There is no way for you to know that. Not even the great celebrity Glenn Greenwald can know that.

    Once you have been given the comprehensive national security briefings, you are going to do the same thing the last 11 presidents did, and realize that the people have chosen a bellicose and secretive government to protect them at all costs, and that you can’t unravel it.

    Obama basically told you this last year.

    Because that’s how we’ve always changed this country – not from the top-down, but from the bottom-up; when you – the American people – decide that the stakes are too high and the challenges are too great.

    What did you think he meant? Elect me, and I will change everything for you? If that’s what you heard, then you voted for the wrong guy. You should have voted for McCain. He’d have changed everything by now, surely?

  220. 220
    poopsybythebay says:

    @sgwhiteinfla:

    Thanks for explaining this in a way that anyone could understand without the ad hominem attacks. What I’m confused about is that if Glenn has the facts on his side why is he spending so much time leaving out pertinent information? And stating it in a way that leaves out all other possibilities. I like reasoned arguments with a little pro and con. Glenn does not offer that-it is a very definitive X is evil. I hate that.

  221. 221

    Given the way he has started, I will ride his ass and your ass for as long as it takes. Bullshit to YOUR timetable.

    After eight years of a national nightmare, people want to ride Obama’s ass. Hmmmm.

    Something wrong with this picture.

  222. 222
    DanSmoot'sGhost says:

    So that’s it huh? Obama is to be held completely blameless?

    If that’s the best you can get from this thread, so be it. Not everybody can understand this issue, and clearly, you are not one who can.

    Some people will get it and some won’t. It’s a great country, think what you like.

    When your absurd view frustrates you enough, maybe you will step back and change it. Keep in touch.

  223. 223

    dmv

    How do you know where the petitioners were abducted from? Links please.

  224. 224

    It’s all about self-image with some people.

  225. 225
    dmv says:

    @ sg 213

    There were clearly standards set that had to be met in order for detainees abroad to be granted habeus rights and the Obama DOJ is asserting that the specific detainees that are petitioning do not meet that standard.

    Except that Bates found that they do, and Obama is resisting that. This isn’t a clean slate. The district court ruled in this case. Obama thinks the district court is wrong. Obama thinks that these three detainees can continue to be held without charge, indefinitely. My point remains.

    @ kay 214

    No, I’m not missing Pakistan. There would be some question, I think, if ISI forces snatch a couple of people up in Kashmir, and we render them into Afghanistan for detention. But you seemed to be envisioning us or NATO or ISAF, in a raid, in a fight, whatever, capturing people and detaining them (thus, as you say, on the battlefield). I don’t think Bates’ ruling would necessarily apply to a battlefield capture. Why not? It’s a battlefield capture.

  226. 226
    dmv says:

    @ sg 223

    It’s in Bates’ opinion. One was captured in Dubai, UAE; one was captured in Thailand; and one was captured somewhere in Pakistan, though it’s not clear where. The government appears not to have argued that the Pakistan capture was combat-related. Which is why Judge Bates says they were "far from any battlefield at all." (25).

    His opinon is here.

    See page 5 for the details about where they were captured. Note that only 3 of 4 petitioners was held to be entitled to habeas. There was a factual dispute about the one, who may have actually been captured in Afghanistan.

  227. 227
    kay says:

    @dmv:

    He did not limit his decision to the three detainees at issue. He used a test. One he basically made up. It might be a fine test, but it isn’t the SCOTUS test, but that’s a different argument.

    What’s your distinction again? "Combat operations" in Pakistan justify a detention without hearing in Afghanistan? Do combat operations in New York City justify a "battlefield detention" in Afghanistan too?

    Where’s the battlefield? You realize you’re heading toward "everywhere we say it is" right?

  228. 228
    Steve S. says:

    Well, it was fear that drove the country into the ditch of war machine madness. Fitting that fear would be the motivation for trying to dig it out. So fine, you fear the war machine.

    That’s quite a Beamonesque leap to a faulty conclusion. My point has nothing to do with "fear", it’s an enunciation of the simple principle that accountability increases proportionally with power.

    The sooner the people stop stamping their feet and passing the buck, and take responsibility for their own country, the sooner it will start to change.

    I think that’s exactly what Greenwald is trying to do.

  229. 229

    dmv

    Did you not read my comment from above? The judge didn’t rule on whether the petitioners were actually telling the truth on where they had been detained. Because it was a motion to dismiss he had to assume that the petitioners were factually accurate. Again for the cheap seats.

    Although a court must accept as true all of petitioners’ factual allegations when reviewing a motion to dismiss pursuant to Rule 12(b)(1), see Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "’factual allegations . . . will bear
    closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a petitioner’s habeas petition must be construed liberally, and the petitioner should receive the benefit of all favorable inferences that can be drawn from the alleged facts.

    And I would love to know where you pulled it from your ass that the Judge ruled that the guy who said he was picked up in Pakistan wasn’t combat related. Seriously why don’t you block quote that part of his decision.

  230. 230
    cyntax says:

    @dmv:

    I don’t think it’s just one of several possible alternatives interpretations. I think it is a fact.

    I know you think it’s a fact, and I’m not really interested in contesting that with you because I think we’d just go round and round.
    [As a side note it might be more constructive for you to acknowledge that your facts aren’t always going to be received by others that way, but the choice is yours]

    See, I do believe Obama is far more open and responsive than Bush ever was. I believe that if there is enough pushback against the DOJ’s position, we can change it. But even if I didn’t believe that, I would certainly not consider acquiescence an adequate alternative.

    Ah, well that’s interesting: we do seem to have some things in common then. It’s a long thread, and I mentioned it quite a ways up, but I do think Obama needs to be held accountable about this issue and others. Where you and I differ more is about the timing [and perhpas methodology] of such accountability, I’m willing to wait longer. Still that doesn’t mean waiting indefinitely, so since it seems you’re ready to start putting the screws to him now, what exactly are proposing to do? Although I’m not convinced by your arguments about Bagram, maybe you’ve got a good plan on how to proceed.

  231. 231
    adnoto says:

    @DanSmoot’sGhost:

    Screw the thread. That is what I got from you. And yeah, it’s the best I got from you. You still have not said why you are playing protector. Why is that? What is worth protecting? You don’t seem as dopey as the rest of the clowns here. Like I said, you seem to know the score. The cognitive dissonance you are experiencing has to be a bitch.

    As for keeping in touch….No worries. I won’t be back to point out the obvious and make people feel uncomfortable. I have plenty on my plate dealing with the "vote and hope, more and better Democrats" idiots over at Greenwald’s place.

  232. 232
    dmv says:

    @kay 227

    "Combat operations" in Pakistan justify a detention without hearing in Afghanistan? Do combat operations in New York City justify a "battlefield detention" in Afghanistan too?

    I promise I’ll be more receptive to this argument when U.S. Special Forces operators are calling in airstrikes on Taliban and al-Qaeda positions in Brooklyn.

    In other words, I think the location of a battlefield is a factual matter. Whether a person is detained on the field of battle should be decided by a status review hearing. The process used at Bagram is "less comprehensive than the CSRT process" of Gitmo, which the Supremes held inadequate as a matter of law. See page 37 of the opinion for that.

  233. 233
    kay says:

    @dmv:

    Yet, you’re willing to extend the battlefield to Pakistan. We haven’t done that. Not formally. Where else will this "battlefield" migrate to?

    Your solution is worse than the problem. Your solution is concerning me.

  234. 234
    dmv says:

    @ sg 229

    Read page 25 of the opinion, which I already referred to. Again for the cheap seats.

    And don’t be an asshole.

  235. 235
    cyntax says:

    @adnoto:

    You don’t seem as dopey as the rest of the clowns here…I have plenty on my plate dealing with the "vote and hope, more and better Democrats" idiots over at Greenwald’s place.

    It must be b!tch be the smartest person wherever you go–good luck with that.

  236. 236
    kay says:

    @dmv:

    The fact that the process at Bagram is worse than in Cuba is relevant only to these 4 petitioners.

    Unless Obama is still transferring prisoners to Bagram from places unknown. If he’s picking them up in Afghanistan, Bate’s test doesn’t apply. Hell, Bate’s test doesn’t apply to Afghans AT ALL, no matter where they’re picked up.

    It does apply if they’re picked up in Pakistan.

  237. 237
    dmv says:

    @ kay 233

    Really? Even though we have launched cross-border attacks into Pakistan? The battlefield doesn’t extend there because… why? It’s simply a factual matter whether the battlefield extends into Pakistan. The battlefield, in my "solution," as you call it, isn’t a legal concept. It’s a factual matter. If we’re fighting there, it’s part of the battlefield. Does that mean that all Pakistan is the battlefield? No. It means that where we’re fighting in Pakistan is the battlefield.

    If you’re trying to say that that’s unauthorized by Congress, or violative of international law, or something, that’s a different question entirely. But your concern was what do we do with people we capture on the battlefield? You were concerned about baddies that we capture in Pakistan (presumably in fighting). I’ve addressed that. The battlefield is where the fighting actually is taking place, not just where we say it is.

  238. 238
    dmv says:

    @ kay 236

    Ok, I may be confused at this point about what your concern is. I’ll just let my 237 comment stand until I hear further from you, because I’m not sure that I’m understanding where we’re butting heads. And I’m not a butthead just for the fun of it, I swear. :)

  239. 239
    Phaedrus says:

    @DanSmoot’s Ghost

    "Once you have been given the comprehensive national security briefings, you are going to do the same thing the last 11 presidents did, and realize that the people have chosen a bellicose and secretive government to protect them at all costs, and that you can’t unravel it."

    This just seems like a lazy argument based on your personal view. I call bullshit.

    I’m no lawyer – if you want to say there wasn’t another way for Obama to handle this, that his only choices were to support it (which he did) or disown the practice (which we wish he had), then point me towards something that shows that.

    He’s asked for stays in other cases, he’s even talked to the the ACLU in one suit and got them to agree to an extension. He didn’t do that here (was that not available?) – he supported Bush’s arguments and went him one better. Those those seem to be actions of someone who wants to grant habeaus rights to non-battlefield detanees in his heart.

  240. 240
    Comrade Darkness says:

    @adnoto, where were all you people between 2001 and 2008 who are now so very eager to ride asses on those in power? Were you all in a coma or something?

  241. 241
    Joe says:

    I think it is reasonable of Greenwald to suggest that Obama reinforcing Bush’s prior policy re Habeas is inconsistent with the principles he campaigned on. Glenn has been 100% consistent on this point, and if you find yourself disagreeing with him now when you previously agreed under Bush… well, it’s not his fault. Truly. We can try to tap dance around the issue but Obama’s actions on this particular issue speak louder than words, and its those actions some of us are judging.

  242. 242

    dmv

    I am being an asshole because YOU’RE wrong? From page 25 which I guess you can’t figure out how to blockquote

    The site of apprehension factor, therefore, is of more importance here than it was for the Guantanamo detainees in Boumediene, and for these petitioners cuts in their favor because, for purposes of respondents’ current motion, all were apprehended outside of Afghanistan.

    Guess what that means? Because its a motion to dismiss the judge had to accept the petitioners’ assertations that they weren’t abducted in Afghanistan. And thats even though in other places in the opinion the Judge himself duly notes that the government gave a sworn statement attesting to the fact that at least one guy out of the 3 was in point of fact abducted IN Afghanistan, without comment. Do you not understand what that means? Do I need to use crayons? Should I not use as many big words?

    Thats me being an asshole. We can handle it either way but what it boils down to is that you are wrong on the substance of your argument. Period.

  243. 243

    dmv

    To clue you in to what kay is saying, the Judge interpreted Boumadiene to apply only to Afghanistan because that is where Bagram is located and from Judge Bates’ reading the Boumadiene decision focused on where someone were detained and where they were from. In the Boumadiene case they focused on Cuba obviously. In this case Judge Bates focused on Afghanistan which is why the 4th petitioner was not afforded habeus rights even though he also asserted that he was picked up outside of Afghanistan because he was FROM Afghanistan. The Judge made no claim about anything having to do with whether these people were doing anything wrong or were likely to have done anything wrong. He focused solely on whether they should be afforded habeus rights and thats why he allowed the guy who himself asserted that he was picked up in Pakistan habeus rights. Its also one of the issues the Obama DOJ took up in their appeal.

  244. 244
    dmv says:

    @ sg 241

    My argument is that Obama is trying to preclude habeas review for these people and that that is wrong. He’s trying to preclude habeas review by saying that the writ doesn’t run to Bagram. Bates held that it did. Now the DOJ is asking for leave to appeal and a stay pending appeal. Because Obama thinks the writ doesn’t run to Bagram for these petitioners. The result is that it’s acceptable for the United States to abduct people from different countries and render them to a place where their detention is unreviewable. That, to me, is wrong.

    Do I need to use crayons?

  245. 245

    dmv

    Thats funny because I thought you were arguing….

    It’s in Bates’ opinion. One was captured in Dubai, UAE; one was captured in Thailand; and one was captured somewhere in Pakistan, though it’s not clear where. The government appears not to have argued that the Pakistan capture was combat-related. Which is why Judge Bates says they were "far from any battlefield at all." (25).

    But since you are no longer saying thats what you are arguing I will leave it alone. Gnite all.

  246. 246
    bystander says:

    Can someone be simultaneously prescient and ironic?

    My only concern regarding the complete destruction of the Republican Party is the chance that the Democrats might become just as arrogant and corrupt as the Republicans are currently. The only thing that assuages these concerns are the historical record of the Democratic Party being the biggest enemy the Democratic party has, and that I have a hard time believing the Democrats can become as bad as the Republicans. They will turn on themselves before it gets to that point. – John Cole, 2007

  247. 247
    dmv says:

    Just to clarify.

    I was reading kay’s, and others’, concern to be: wouldn’t this be a precedent for giving habeas rights to everyone in Bagram or Afghanistan? Wouldn’t it apply to anyone we picked up in Pakistan and detained in Afghanistan?

    I was trying to say, no, it wouldn’t. It wouldn’t apply to people we pick up in Pakistan on the battlefield, because a battlefield capture is distinguishable from a non-battlefield capture. The former more squarely comes within the realm of the traditional law of war. I referred to page 25 because of this language:

    It is quite another thing to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theater of war, where the Constitution arguably may not reach.

    The clear inference is that in this case, we’re not talking about battlefield captures. But even if the one guy was detained on the battlefield in Pakistan, that will certainly come out on habeas review, I’d think, no? In which case, in detention he stays.

    Then kay was concerned about my willingness to extend the battlefield. I responded by saying that the battlefield is coterminous with actual fighting. That way, we can’t say NY or Chicago = battlefield and detain people in NY & Chicago. At the same time, it allows us to detain people pursuant to the law of war.

  248. 248
    Elie says:

    Exactly Adnoto: You go to the personal as soon as someone thinks that your ideas — note your IDEAS are about what YOU want and not necessarily what everyone or even many people want..

    NO — I am not a revolutionary who wants to upend the system…I want change within the system that I think can still provide common good. You want a revolution and chide Obama for not being your vehicle. Like you have a system in mind that will replace this one and do better – yeah..

    You said…"If we keep listening to people like you there will never be significant change. Your wait and see attitude is what keeps us enslaved to the establishment. I work under the assumption that Obama is establishment. Given the way he has started, I will ride his ass and your ass for as long as it takes. Bullshit to YOUR timetable."

    Man, you aint ridin my ass nowhere. Start your own godamned revolution and work for it, bottoms up instead of some cheap lip flappin on a blog. My guess is that you aint doing shit…but talkin the big talk..

  249. 249

    Man, you aint ridin my ass nowhere. Start your own godamned revolution and work for it, bottoms up instead of some cheap lip flappin on a blog. My guess is that you aint doing shit…but talkin the big talk..

    ::clapping::

    Love it, Elie. ;)

  250. 250
    Twisted_Colour says:

    The thing that has stunned me about this thread is the number of people willing to give a politician the benefit of the doubt!!

    I mean, what the fuck??? Give a politician the benefit of the doubt??!!

    I understand that most here probably voted for Obama, a lot of you felt flames of hope ignite inside when you heard him speak and some of you just want to plain give him a reach around…. Fair enough, he tickled your fancy, coocoocachoo.

    But still, he’s a politician. If there’s anybody here who think politicians should ever be given the benefit of the doubt please step over to the counter, register republican and check out the bargains.

  251. 251

    Cyntax (in agreement with many others) wrote:

    It really may be very difficult to discern which captives should be charged and which should be released, and as such this process may not go as quickly as we like.

    In other words, the terrorists might get us all, so the constitution and human rights aren’t that important.

    Right? Say it! Say you’re scared of the terrorists and Bush was right to emphasise that point.

  252. 252

    Elie wrote:

    They believe in the top down, my way or the highway philosophy…they just wanted a replacement that would do THEIR idea of right. They have no interest really—none, in a correct PROCESS or in patience or in complexity. They want a replay of Bush but with their guy in office…

    Wow, America seems to have lost its marbles after 9/11.

    Habeus Corpus is so basic, that there is no room for fiddling around.

    Habeus Corpus is the "correct PROCESS".

  253. 253
    pointus says:

    Before the 24-hour news cycle had completed after Obama clinched the Democratic Party nomination, he veered as hard right as one can veer without breaking one’s neck. Observe his nauseating pander to the Israeli lobby on June 4. Remember his promise back in January 08 that he would support a filibuster against any FISA bill which contained legal immunity for the telecoms? The promise he broke in July?
    I think Obama is a smart guy, which is an improvement over the last president, but he has zero principles. Completely unwilling to stand up to the financial interests which have looted this country. He’s just another marionette, controlled by the obscenely wealthy banksters. Same as it ever was…

  254. 254
    Dr Zen says:

    WTF. All this talk about how "complex" the cases are, how we cannot discern who should be released, blah blah.

    Imagine being arrested by the police and sent to jail. Five years later, when you ask, erm, why am I in jail, they say, well, it’s vaiiiiiirrrrry complicated. And when you say, yeah okay, but what about charging me, the police say, well no, we want to retain the power not to do that.

    You are not defending locking up dangerous terrorists. You are not defending Obama’s caution or prudence. You are defending keeping people locked up without charge, without rights, without hope.

    You know what, I hate to go all Godwin on you, but people often ask, how could the good people of Germany — and there must have been many good people — not speak up? How could they stand by and let that happen?

    Well, your nation became a torture state, a rogue, a pariah, and here you are, telling whoever is reading that it’s just too fucking complicated to do the right thing, and that those who want your leader at least to say, this is the right thing, are too shrill, too harsh, not subservient enough. You know, we had eight years of that. How many more will it take?

  255. 255
    Evolve and Learn says:

    I know…I know, Obama is playing eleven dimensional chess, again.

  256. 256

    Yeah, torture is "irritating." So is the loss of Constitutional government. YMMV, and, apparently, does.

  257. 257
    timb says:

    @KRK: I was and I’m a lawyer, although a bit of an ACLU, absolutist civil liberties one. One thing I learned from going to law school and practicing….lawyers are alos excellent judges of character

  258. 258
    S.L. Toddard says:

    The fact of the matter is that when member of party (Y) implements or promotes policy (X), it is (Y) that determines whether most people object or praise, rather than (X). Those defending Obama in this case (and condemning Greenwald) illustrate that fact rather eloquently. Greenwald attacks (X) regardless of (Y) – that is called being fair and principled. The pro-Obama/anti-habeas/pro-Bagram types here support (Y) regardless of (X). It’s like "conservatives" who uttered not a peep against massive gov’t expansion, the seizing of extra-constitutional powers by the federal gov’t, and reckless deficit spending when done by their party but have all of a sudden "re-discovered their principles" now that it is another party that is doing these things.

    The party justifies the policy for these (i.e. too many of you) people, rather than the other way around. And one must utterly lack self-awareness to fail to see that.

  259. 259
    lysias says:

    I still wonder whether, the day Obama clinched the Dem nomination, when he left his plane behind in No. Virginia, while his press corps flew off to Chicago, he didn’t really meet with the Bilderbergers, who were then meeting a short drive from Dulles Airport. It was claimed the next day that he was meeting with Hillary Clinton in Dianne Feinstein’s home in D.C., but there were a lot of conflicting stories about that alleged meeting and its venue. Even if the meeting did take place where it was claimed it did, Obama would still have had time to see the Bilderbergers first.

  260. 260
    Mary says:

    Way past the thread, and I haven’t read all the comments but scanning up backwards I see that the battlefield concept is coming up.

    The United States Supreme Court in Ex parte Milligan has already addressed this issue. There were arguments made in that Civil War era case that the world is a battlefield, the whole nation is at war so the whole nation is a battlefield, yada yada.

    The court pretty specifically held that if you want to rely on a theatre of battle justification for extrajudicial seizure and detention of a person, you had to be operating in a area where, because of hostilities, courts are not open and functioning.

    That’s pretty much the touchstone – are courts open and functioning. It’s why the Padilla detention here as so especially egregious.

    Pakistan’s courts were open and operating. Italian courts were open an operating (Abu Omar). Macedonian and German courts were open and operating (el-Masri) etc.

  261. 261
    cyntax says:

    @Martin Gifford:
    Well, since things didn’t go the way you think they should and a number of people who would ostensibly be in your camp aren’t agreeing with you, sounds like it’s time for the ad hominem attacks.

    Yes, I’m shaking in my boots, and my willingness to wait a little longer means I’ve just pissed all over the Constitution, so now what? What’s your plan to take back the Whitehouse? What’s the point of all your shiny, angry outrage?

    Cause let me tell you sure as sh!t aren’t doing much to build consensus or to rally the troops on this thread, you’re just wanking to the choir.

  262. 262
    kay says:

    @Mary:

    They’re not relying on a battlefield justification for these 4 petitioners. They’re claiming that if they extend to these 4 (held in Afghanistan) then they will have to extend to those picked up (perhaps) cross-border in Pakistan, and then held in Afghanistan, going forward.

    My assumption is that the concern would be thus: pick up a fighter in Afghanistan, and he gets "battlefield" process. Pick up a fighter cross-border in Pakistan, he gets Pakistan process. That happens under the test Bate’s laid out. They’re calling the new Afghanistan policy AfPak for a reason. Obama has made no secret of the fact that he thinks that some of the problems in Afghanistan are actually in….Pakistan.

    I’m not weighing in on the merits of that argument. I’m simply stating that that’s what it is. That’s their policy argument. It might suck. I don’t know. My point is simply that it exists.

    You are assuming that Obama hopes to create precedent that will allow him to hold those 4 petitioners (and others, going forward) picked up elsewhere and currently detained in Afghanistan without process.

    Is it possible, instead, that he hopes to avoid precedent that would disallow him from holding those picked up in Pakistan, as "battlefield" detainees, going forward? I’m asking. I don’t know.

  263. 263
    Godwhacker says:

    Wow. It sure seem like a lot of you are in deep denial. Did you really think that the mainstream corporate media was going to let you elect a real change candidate?

    I know, I know — you feel dirty and used — all your hopes of change have been crushed. I sympathize, I really do.

    Meanwhile, our wars are escalating, the bailouts are continuing, and Barack W. Obama is sticking it to the poor and the middle class by printing so much money to give to his friends on Wall Street that the dollar will soon be worth squat.

    Next time, when you want change, do your homework first. Kucinich in 2012!

  264. 264
    tb says:

    Kucinich in 2012!

    Brilliant. The one guy McCain could’ve beaten.

  265. 265
    Mary says:

    117 – that’s a completely different case.

    182 –
    I really think you are misrepresenting several items and are very much selling a storyline here. To respond will take time, but the “short answer(s)” to the combination allegations about the correctness of Gov’s arguments and the spuriousness of Greenwald’s criticism would be:

    *1. Gov has absolutely nothing to controvert the fact that at least 3 of the 4 detainees were “captured” outside of Afghanistan and Gov’s affidavit/info on the 4th is so bad and incomplete that it cannot be used for summary judgment in favor of Gov on that 4th
    *2. The Judge’s ruling denying habeas for the one Afghan national who was taken outside of Afghanistan was not based as you and gov allege on his Afghan citizenship as such, but rather was based on the factors enunciated by the Judge (I don’t necessarily agree that they hold up as a reason to carve out the exception to habeas, but you can’t ignore them and supply your own as you & gov are doing) The Judge stated that we are about to hand off Afghan citizen detainees to Afghan authorities. Also, that since Afghanistan is the detainee’s country of citizenship and these discussions for transfer have been the process of a lengthy negotiation it is going to be very problematic to start changing the set of who we are turning over, and that it becomes even more problematic when the country we would need to release the detainee to (Afghanistan) is also the country we have already promised to hand him over to Afghanistan authorities for review of his case.
    *3. Neither you nor Gov offer up any actual argument, citation, authority, reason or rationale for the conclusory allegation that there are *golly gee, just lotsa and lotsa great reasons why we might kidnap people from around the war and ship them into the war zone at Bagram* You certainly don’t offer any reason why shipping them into an active battle theatre at Bagram is *mo betta ok* than shipping them to a non-battle theatre location such as GITMO.

    To go back to details which likely won’t be read –

    The Judge didn’t "decide" to err on the side of believing the petitioners, the Judge applied the legal standards for review of a Motion to Dismiss. ???? If you are a lawyer, presumably you know that all it would take for gov at that juncture is to present by affidavit concrete information allowing for summary judgment on this point in their favor. So to take a look at what they actually did.

    They had NO response to the allegations of 3 of the 4 that that they were taken outside of Afghan. That’s not a matter of the Judge deciding to believe "them" in the face of conflicting information (and keep in mind, these detentions and cases have been going on for years – it’s not like there hasn’t been time for gov to figure when, where and how they "captured" these people). In 3 of the 4 cases the court did not "decide to err" in favor of the petitioners allegations, rather, those allegations were uncontroverted. In the 4th case gov’s own responsive information isn’t very good and dosn’t meet SJ standards.

    So when you say,
    "But if the government can eventually prove these men were captured in Afghanistan, that in and of itself would probably reverse the Judge’s decision about granting them habeus rights and going by the Boumediene decision."

    That’s kind of a big "well, yeah!" That is the point. And since they’ve had them for years, that "eventually" has had plenty of time to get here. That’s why this is not this huge issue of all kinds of Bagram detainees getting habeas. Gov, after all this time, not only isn’t coming up with "proof" but lawyers who have to ante up sworn statements in front of Dist Cts that are FINALLY paying attention to rules of pleading, professional responsiblity, evidence, etc. are belatedly getting a little shy about fibbing to the courts.

    Not so shy, though, that they are unwilling to make the completely poofy arguments that you dutifully copied over – that Gov will “now” have to:

    (1) be prepared to provide individualized, fact-bound justifications in an Article III court for its decision to detain at Bagram any non-Afghan individuals captured outside Afghanistan and disclose all the information necessary to defend that decision; or (2) refrain from capturing a non-Afghan combatant outside Afghanistan, even if capturing him away from the safe havens provided by al-Qaida or the Taliban forces is consistent with the laws of war and in the interest of national security.

    You can’t both argue that everyone at Bagram was seized in Afghan(just give Obama time, he’ll "eventually" prove it) and also that there are so many non-Afghan individuals captured outside of Afghanistan who were shipped to Bagram that it is going to be an “oh, waily waily” moment for Gov to actually have to have “individualized” ustifications that are (OMG!!!) “fact-bound.”

    Geez – imagine the horrors. That if you are going to seize someone in a foreign country and ship them into an active battle zone at Bagram and that you would need to have “justifications” to hold that individual and, worse yet, they would have to be “fact-bound” Please – that’s just silly and it is a frivolous argument. How are you & gov saying that this is different from shipping people to GITMO other than the fact that they are putting them in a place of more personal danger and with less process?

    Similary, the argument on 2 is just as silly – no one is arguing that Gov can’t take any actions vis a vis non-Afghans taken outside of Afghanistan, only that they can’t be shipped for indefinite detention with no charges or factual basis for holding them (whether shipped to GITMO or Bagram). While on the one hand Obama has touted a rejection of the “enemy combatant” designation, that zombie crawls from the crypt in argument #2.

    Our Sup Ct has ruled that is isn’t actually consistent with the laws of war to span the globe, kidnapping people on unreviewed whim and shipping them to be held indefinitely (much less shipped to and held at a battle site). As a matter of fact, rules of war do not support affirmatively moving detainees from a less dangerous to a more dangerous location of detention. Go figure. So while Obama should get benefit for actions to, for example, attempt to close GITMO as an indefinite detention center, to say that he should get credit for that while his DOJ is simultaneously arguing that the very same GITMO problems can be replicated at Bagram (bc it has a different names) is like saying that Bush should have gotten credit for all his statements to the world that "the United States does not toture." And to say that we should continue to suspend habeas for kidnapped or purchased detainees, now years into their detention, because Obama is going to "do a review" ignores all the reviews that Bush already had done . More importantly, the essence of that argument is that since "Obama = good" then kidnapped and purchased detainees shipped to Bagram should have their fate reliant on a benevolent, unreviewed CIC’s decisions, not a legal right to have charges made or be released.

    It’s not so much that obama is making Bush’s arguents, it’s that O bama supporters begin to sound more and more like Bush supporters (equating arguments against unrestricted, unreviewed, Executive power with being meant to and unfair to Bush Obama).

    In any event, despite all the handwringing, you are basically making the central offensive argument as your defense. That is that ALL IT TAKES to get rid of these cases is decent evidence of Afghan based detention. For most detainees at Bagramit is simply not going to be an issue. For those detainees, waiting out an Obama administration determination of how they are going to handle detentions (which even for Afghanistan based detentions result more from sweeps and home invasions and *informants* involved in local score settling and lots and lots of drug trade related issues than in combat detentions) will be their option.

    But for the small group of detainees who can allege non-Afghan detention [and who are also not Afghan citizens – a distinction the Judge made but which I’m not sure holds up as an exclusionary grounds] the court’s ruling has impact. And neither you nor Gov offer up any reason to justify shipping people from around the world to Bagram . To go to your own quotes from Gov, the first one you make shows how disingenuous the arguments are:

    But there are many legitimate reasons, having nothing to do with intent to evade judicial review, why the military might detain an individual captured outside Afghanistan in the Bagram Theater Internment Facility, including, for example, the individual’s connection to the theater of war.

    No – there aren’t. Gov argues that if, in the subjective opinion of *some guy* in Gov, someone somewhere in the world has "a connection" to the "theatre of battle" in Afghanistan then somehow, legally, that’s a reason to suspend habeas for that person and allow Gov to grab them and ship them from a foreign destination to an active war zone. Gov argues it, but offers not one damn citation to authority for that proposition. The only thing that would support it is a Bush carry over concept of the Presidential prerogative to declare anyone it wants as an “illegal enemy combatant” and then suspend any rules of any kind applying to them.

    And to go to your point about Greenwald using Obama’s arguments that you say were not reflections on Obama’s theories of kidnap and shipment into indefinite, unreviewable detention in general, but rather were targeted so that no one should have assumed that Obama felt the same way if the kidnap and shipment to indefinite detention didn’t involve Camp X-Ray, that seems fairly silly as well. To start with, Obama’s complaints about the lack of process for GITMO based CSRT (combatant status review) procedures at GITMO apply, as Judge Bates reviewed in his opinion, with much more impact to Bagram which doesn’t even have the minimalist CSRTs that GITMO had. Not only that, but the context of Obama’s statements wasn’t a debate on GITMO, it was a Debate on the MCA.
    The MCA did not, as the DTA had done, “merely” try to suspend habeas for GITMO. The DTA (co-sponsored by Levin) in response to the Supreme Court ruling granting “statutory” habeas to GITMO detainees had changed the statute to exempt our GITMO base – creating a "habeas free" zone for GITMO only. The MCA, by contrast, suspended statutory habeas worldwide, based solely on Gov’s subjective, non-reviewable decision that someone not captured on a battlefield should be disappeared. And since the point of Judge Bates decision is that you can’t elevate form (substituting Bagram for GITMO as the nominal place of detention) over substance, I don’t see how it is somehow unfair to lift Obama’s arguments on unreviewed detention of non-combat captures from the MCA debate and sniff that it is inapplicable to unreviewed detention of non-combat captures if we just send them someplace (with more danger and less process) like Bagram instead of GITMO.
    And not so much in 182, but in various and sundry places, you dismiss anyone asserting that there should be a review process to validate detention with that person somehow naively arguing that terrorists should be set free when they don’t “know” the “facts” (at least, not like the Gov jailors who are repeatedly telling judges, years now into detentions, that one reason they can’t make responsive filings in court is that files are a mess and no one really knows wtf is going on). You conflate support for habeas with advocating for terrorists, then accuse others of conflating the habeas cases with being “about torture.” But then you say it is Greenwald who is full of hyperbole and not giving sound argument a sound response.
    In any event, while I don’t equate habeas review with guilt or innocence and I’d just as soon that terrorists not be set free, let’s take a brief look at that infallible Gov you rely on to know more (even though they can’t even figure out the names for some of their detainees). Arar – Kurnaz – Algerian detainees – Uighur detainees – Errachidi(apparently detained for years because his soufflés never achieved quit enough fame) – el-Masri – Dilawar – the 15yo “tomato purchaser” lynchpin of al-Qaedas financial empire, etc. Just what is it about those and other well documented detentions that leads you to place more belief in a Gov filing that sniffles over the fact that Gov would have to be “fact-bound” about an “individual” before they arrange for their kidnap and shipment to a war zone than in, oh, say what the CIA’s Director of its Political Islam Strategic Analysis Program said publically, not cloaked by anonymity, about what everyone did and did not know about the detainees we were holding at GITMO – the ones who had been through much more rigorous review than the ones at Bagram.
    http://www.harpers.org/archive.....1158706094

    Even the command down there knew that probably one-third of the prisoners were neither terrorists nor jihadists, and wouldn’t have been there if we weren’t paying a bounty to Pakistani security forces for every Middle Eastern-looking person they handed over to us.

  266. 266
    Hyperion says:

    wow…isn’t this thread a great summary of the strengths and weakness of the internet and those who inhabit it? we haven’t had one in a while with this many comments that didn’t devolve into mostly name-calling. lots of facts and opinions expressed in spite of the usual misrepresentations, personal attacks, strawmen, and "ass-riding" threats. not bad. i give it a B+.

  267. 267
    Godwhacker says:

    @ 264

    ‘The one guy McCain could have beaten’? With Sarah (Stupid) Palin on the ticket, I doubt that McCain could have beaten anyone. But let me ask you, if Obama is the same as McCain on the wars, the same as McCain on civil liberties, the same as McCain on healthcare, and the same as McCain on virtually every other issue, then how does it matter who won?

  268. 268
    Elie says:

    Despite the ebb and flow of this long thread that sometimes veered into negativity and anger, there is a lot to be hopeful for as I read the many interesting and intelligent comments.

    What Obama has done in this decision may be wrong in the most pure application of what we desire — to have everyone potentially imprisoned to have an unfettered right to habeas corpus. It is also right however, for there to be considerations on the impact of that in relation to other major undertakings related to our security. Many of you may not or may agree with that, but those considerations exist.

    Also running through the discussion is a thread of complex emotions from disappointment and disillusionment to anger and contempt as well as sometimes derision about whether commenters are perceived as blindly loyal to the administration no matter what versus the accusation that many critics are idealogues who care little for the reality and nature of governance.

    We are probably all right about various parts of this. That said, we have to end up in a place that we believe is ultimately positive, or we will lose motivation and optimism about our future. I cannot just accept as many here have posted that this administration is just more of the same and that we must therefore give up thinking or expecting that good outcomes can happen. Neither can I march lock step into unexamined cheerleading that states that all decisions and actions by the administration will end up in the right place.

    We, the people, the community here and elsewhere in this country, have to find a new place that we have not been in a long time, maybe ever. We have to become and sustain our being as engaged citizens, eyes open, brains open and hearts open. We have to see and evaluate but we have to also encourage and build hope within ourselves and each other. Cynicism without a way out just deadens resolve and the positive energy needed to take on and make change — whether to make our leadership honor their committment to the values we hold or to also provide support to the administration to do the tough things. It cannot all be just negative — we have to also give them our energy to do what is difficult.

    I think that its great to have these long and informative, powerful discussions. But also let us not forget to go away from the keyboards and do what we believe as well. It starts at the bottom with us…we own it … it is OUR country.

    Have a wonderful day to everyone. Spring is here and we are alive and can do good things…

  269. 269
    Mary says:

    262 – They are actually relying on a battlefield justification for the petitioners, though, because there is simply no other justification. Why were they authorized to seize and ship to Bagram? The original authority – which they are continuing with now in light of the demands for habeas, is that they were picking up combatants in a Yoo-esque battlefield. And at the time they picked them up, that was the formal US position. If it has changed in substance rather than just in rhetoric and form, now is Obama’s so far wasted chance to prove that.

    (BTW – I understand you aren’t arguing strongly one way or another, just picking up and reviewin arguments – but in some fast reverse scrolling it seemed to me that it was worthwhile to weigh in with the Sup Ct’s approach to a battlefield)

    With respect to the Pakistan issue:

    They’re not relying on a battlefield justification for these 4 petitioners. They’re claiming that if they extend to these 4 (held in Afghanistan) then they will have to extend to those picked up (perhaps) cross-border in Pakistan, and then held in Afghanistan, going forward.

    They do have a problem. BTW, this is the same problem that has been faced in other "wars" where A was at war with B but didn’t also want to declare war on C or engage in acts of war vis a vis C and belligerants of B went back and forth over borders as a result — it isn’t new.

    But to look at the Sup Ct approach, if it appears that areas of Pakistan are in essence de facto lawless (real courts are not open and operating) then there’s nothing about Bates’ ruling that would prevent a determination that those areas are a part of an actual battlefield. But the US has to decide whether or not it wants to go there – to say we are engaged in battle in Pakistan.

    We have already set up situations with the drone attacks killing civilians and taking place in Pakistan, support for Musharaf disapppearing hordes from Pakistan, etc where we pretty much asked for what happened in Swat. So there is more than one approach. One would be to go ahead and outright have a policy declaration that areas of Pakistan are US battlefield which is in part what Obama wants to accomplish apparently.

    It is unquestionable that some of the Afghan problems and al-Qaeda/fundamentalist/terrorism problems come from Pakistan (and from Indonesia, UK, Germany …) with Pakistan also being in the position of having a physical border with the areas at issue in Afghanistan. It’s also unquestioned that we get civilans, aid workers and innocents caught in nets (as well as just plain killed in their homes) in those areas. It’s also not much controverted that a lot of what we engage in has little to do with actual terrorist threats to the US and a lot to do with picking and choosing which druglords, local warlords, etc. we want to support and acting to support those ingerests.

    So some (but not all) of the options are to a) further piss off Pakistan nationalists and interest factions by disregarding the border and making our formal policy one that asserts a battlefield status between the US and part of Pakistan but do so in a manner that follows Geneva Convention requirments for civilian protections, valid review panels for review of claims of protected persons status, treatment that does not allow (even if the appendix to the Army field manual otherwise would) abuse, etc., or b) do a, but without any formal declaration and/or without makind such formal Geneva Conventions protections applicable, or c) make such a formal or defacto distinction and set up a Geneva Conventions compliant system for Pakistani detainees but not for Afghan detainees, etc.

    Really – this concernt, "pick up a fighter in Afghanistan, and he gets "battlefield" process. Pick up a fighter cross-border in Pakistan, he gets Pakistan process" shouldn’t be much of a concern and it isn’t really what "happens under the test Bate’s laid out."

    If you have someone picked up as a combatant in battle (your refernce to a "fighter") then there isn’t much about the all facts and circumstances approach Bates laid out that would prevent POW type of detention. If, rather than "fighter" in a combat setting, you mean they pick up someone in Pakistan that they THINK is a "fighter" (for al-Qaeda and the Taliban, as opposed to for drug lords or warring political factions?) the Geneva Conventions REQUIRED full and fair hearings for those situations. Not just for Pakistani detainees, but for Afghan ones as well. So it’s kind of a pretense at "oh my stars and garters" for Gov to argue that when you grab people, not in combat, that you only think might be affiliated with combatants, we’re getting by with ignoring the Geneva Conventions when they are Afghan so it would be a real imposition to make us comply with GCs if they are not Afghan.

    So if they have actual fighters, there is nothing about Bates’ ruling that would indicate that his determination as to non-combat captures has an imact and there you are probably looking not at Boumediene but at Hamdi for your authority.

    If you have non-combat captures in Afghanistan, really there should have long ago been Geneva Conventions compliant protected person reviews. There weren’t – hopefully Obama’s review process will address that so that innocent non-combatants get, not some wild new court invented process, but rather the process that the laws of war and the GCs always have contemplated.

    If you have non-combat "captures" in other countries like Pakistan, then let’s look first at what the laws of war tell you – before we go to Bates and his ruling and/or the diplomacy and internal destabilization of Pakistan that might be at issue. The laws of war/Geneva Conventions tell you that if your military picks up someone in a non-combat setting (even in a country with which you are formally at war) and ships them out of the country of seizure to another country (as we would be doing if we send Pakistani captures to Bagram), then IF that person is not an actual combatant and is instead a protected person that you screwed up over – you’ve commited a war crime by shipping them out of country.

    So you start there on the on issue of Pakistani captures. If they are taken in combat vs if they are not, and what the laws of war in general require when you transport across country borders. That’s not Bates and that’s not Boumediene – that’s the actual Geneva Convetions as executed in part by our own War Crimes Act.

    So to the extent we are actually going into Pakistan on foot and not by drones and engaging in on foot combat there, and are then taking prisoners/detainees on Pakistan soil and transporting them to Afghanistan, we have that one little "if we got the wrong person its a war crime" issue to deal with one way or the other, separate and apart from Bates ruling. We really need to dig in and deal with Pakistan on that if we plan on doing a lot of Pakistan based seizures.

    Adding a little process to prevent war crimes isn’t the end of the war. But if we are really planning on both commiting to our GC and War Crimes Act obligation and on engaging in a lot of Pakistan location captures, we better be getting a Pakistan base and processing center before we start shipping large numbers of people who were not captured in combat cross border.

    Re this:

    You are assuming that Obama hopes to create precedent that will allow him to hold those 4 petitioners (and others, going forward) picked up elsewhere and currently detained in Afghanistan without process.

    I’m not really making any assumption on his hopes and fears. I’m talking about what he will, as a matter of law, be doing. It is what he is arguing. I will say that the above arguments re: shipment to other nations as a war crime might explain why he doesn’t want to just punt by shipping them from Bagram to GITMO and saying tha they will therefore end up with getting the same habeas reviews as other GITMO detainees.

    Is it possible, instead, that he hopes to avoid precedent that would disallow him from holding those picked up in Pakistan, as "battlefield" detainees, going forward? I’m asking. I don’t know.

    You can see from my responses why I don’t buy that, but it is the kind of thing that should be asked. In large part my response would be that for combat issues, he has not problem stemming from either Bates’ decision or from the Geneva Conventions.

    For non-combat seizures by US troops on the ground operating in Pakistan, he has such a host of problems I’m not sure Bates’ decision would be the biggest one. The further destabilization of Pakistan by internal strife over US "boots on the ground" combat in Pakistan would be pretty difficult and would involve a some pretty substantial decisions on weighing and balancing competing interests and should also involve going to Congress for an ok to operate militarily within Pakistan. US boots on the ground in Pakistan to actually engage in roustings and non-combat related detentions as well, with shipment of the non-combat detainees over the border and to Bagram raises all the same Congressional authorization, Pakistan destabilization, etc. issues and the issues of war crimes when you ‘get it wrong’ and a Geneva Conventions required "fact-bound" trial option for those claiming protected persons status where, the determination that they are protected persons would also be a de facto determination that we committed a war crime when we sent them to Afghanistan (so how credible are those likely to be as a practical matter or in the eyes of the world – the same issue we faced at GITMO) To tack on that Bates’ ruling, depending on the facts and circumstances, might require that those detainees would also have a right to a habeas review by a US court is not, IMO, at that stage, all that substantial a burden.

    But yes, Bates ruling may give Pakistani protected persons who are being detained a habeas recourse that is being denied to Afghan protected pesons being detained. My take is that the problem is with his rationale that excludes an Afghan protected person from having that recourse more so than with the provision of it to the Pakistani protected person, but it could very well work that way.

  270. 270
    bystander says:

    Yo!, Mary

    Your expertise freely offered here and elsewhere is a genuine gift. It’s an extraordinary act of generosity.

    Much appreciated. Thank you.

  271. 271
    Hyperion says:

    bruce fein weighs in.

    recall that he was a big supporter of the Impeach Bush crowd.

    and Elie@#268:I do not believe "Obama is as bad as Bush." And obviously, saying "The Obama admin is following Bush admin policy on this matter" is NOT saying "Obama is as bad as Bush". I wish the rhetoric could be dialed back (a lot) but that doesn’t seem possible for some.

    Anyway dmv, Cyntax, Kay, and Mary at the end (and others whose handles I cannot recall at this moment) made substantive arguments. I know more now than I did before about these matters. So..progress.

  272. 272
    kay says:

    @Mary:

    Thanks, Mary. I’m way out of my legal comfort zone, but I can read an opinion, and I never rely on just one lawyer’s analysis. Even if it is Greenwald.

    We agree that there should be some official declaration re: Pakistan. Although, I have to say, if we didn’t know Obama was going into Pakistan, we weren’t listening. As I remember it,. it was a huge issue in the primary campaign.

    I knew he was going in there. I knew we were already in there. What I appreciated about Obama was he was the only candidate who admitted it. Now we’ll see what he does with that.

    The state has two separate issues. They’ve got the shipped detainees, like the 4 petitioners, and they’ve got the potential POW’s, if we’re buying their policy argument. You’ve got a solution for both, and it looks credible to me.

    I won’t just dismiss the state’s arguments without taking them apart, though. I don’t think that’s good lawyering, whatever your predilection. You did a great job with my question.

    Thanks for the debate. This has been interesting. I’m usually on the other side, relying on a state code section I can basically recite.

  273. 273
    Hyperion says:

    @kay:

    As I remember it, it was a huge issue in the primary campaign.

    And when the topic came up here there was a vocal group of people who weighed in with "the goal now is to get Obama elected. we must not be distracted by these small matters. let’s keep our eye on the real goal: the election." (I’m thinking of ppgaz, Herb, TheCat, TZ, DSghost or whatever the fuck he’s calling himself these days AND others.) Now the election is over and it’s time to move from lofty speeches to actually doing something.

    I bought the "Obama has to say certain things to get elected so watch what he does AFTER the election" argument. I was patient then but now? The sooner we all start holding his and other’s feet to the fire, the better.

  274. 274
    doug lain says:

    Cleek asked us to put aside the facts about Obama’s DOJ and check our gut. Why? Because the gut has more nerve endings than the brain, because we don’t need to get cluttered up with facts and thoughts. We are straight shooters, all of us. Now some of you are thinking, "wait a minute, the gut doesn’t have more nerve endings than the brain." But that’s because you’re using your brain to do the thinking. You’re making two mistakes right there. Don’t think. You don’t have to think. If you check you’ll see that that is what your gut is telling you.

  275. 275

    […] instead, finds them commonly expressed in Obama-defending venues and some liberal blogs.  Scan the comment section to John Cole’s post criticizing Obama’s Bagram position to see how frequently this mindset is now expressed to […]

  276. 276
    Gunnar says:

    Sorry if I sound naive – but shouldn’t there be an argument be made in this debate on some other level than legalese? Isn’t there also an ethical side to this question? Last time I checked, the Declaration of Independence (not legally binding, I know) contained this:

    Now, detaining anybody, for any reason, pretty clearly deprives them of two of the rights explicitly mentioned above. So if this were my president or my government doing the detaining, I’d damn well like them to at least explain to that person why they are being detained and for what reason – and give them a chance to challenge those reasons – ’cause, you know, mistakes happen.
    Going legalistic in this debate and trying to figure out a compelling reason why one kind of person should be granted such a chance at a review and some others not, purely based on their country of citizenship (US citizens definitely, allies – like myself – maybe, Pakistanis … weeeeeell, Afghans … definitely not) strikes me as … well I do not think a have an non-insulting term for this…
    Is there anybody amongst the posters in this thread, who’d be willing to allow their government – or any government, for that matter – to imprison them or one of their family members indefinitely, without a chance of appeal, because someone in that government’s military or intelligence comunity thought that it might be a good idea to do so? If not, then you should not allow your government to do it to anybody else. Remember, Jefferson did not write about you, or your family, he wrote about EVERYBODY.

    Just had to get that out of my system…

  277. 277

    […] Balloon Juice: It isn’t the least bit surprising that this is happening, but it really is irritating. […]

  278. 278
    sugarfree says:

    I’ll at least give Glenn props for coming here as himself and not as a sockpuppet.

  279. 279

    I am with Glenn on this. What the DOJ has done so far is very disappointing, and by criticizing it and building a consensus, perhaps we can help shape the policy so it is more consistent with what the Obama Administration is, wants to be, or at least should be.

  280. 280
    dave says:

    sgwhiteinfla:
    "Did you not read my comment from above? The judge didn’t rule on whether the petitioners were actually telling the truth on where they had been detained. Because it was a motion to dismiss he had to assume that the petitioners were factually accurate."

    This is true, but irrelevant. Obama is the one who moved to dismiss the case under this standard. Obama, in moving to dismiss, is effectively saying that "Even if everything the petitioners say is true, they still are not entitled to Habeus."

    That’s the position that Greenwald and everyone else is currently arguing against.

    The Court rejected this argument and Obama has appealed it, meaning he still believes that even if the petitioners were abducted outside Afghanistan they are not entitled to Habeus.

  281. 281

    Now the election is over and it’s time to move from lofty speeches to actually doing something.

    I bought the "Obama has to say certain things to get elected so watch what he does AFTER the election" argument. I was patient then but now? The sooner we all start holding his and other’s feet to the fire, the better.

    That’s just bigmouth rhetoric, and you know it. It’s a four year term, a 60-year problem, and we are at month three.

    Whether this problem, and more to the point, the larger problems that it is bound to, can be handled in the time that he has is not known, certainly not even remotely known by anyone around here including Glenn Fucking Greenwald, or you, or me.

    Absent that complete set of facts, it’s just theatrics to be making the assertion you are making.

    No sale, not even close.

  282. 282
    excon says:

    Hello:

    It’s really not about the detainees habeas corpus rights, It’s about yours. Of course, you were told that it was just the detainees who can’t challenge their imprisonment, but YOU, the American citizen still have your full contingent of Constitutional rights…

    However, consider this. Let’s say you were mistakenly picked up by the FBI and whisked off to Bagram, what judge are you going to tell about the mistake?

    If one group doesn’t have habeas corpus rights, and you’re accused of being a member of that group, you, Mr. American citizen, who will never lose your habeas corpus rights, somehow just lost them.

    excon

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  2. […] instead, finds them commonly expressed in Obama-defending venues and some liberal blogs.  Scan the comment section to John Cole’s post criticizing Obama’s Bagram position to see how frequently this mindset is now expressed to […]

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