Barack Obama, Eric Holder and Leon Panetta are all lawyers, And Holder and Panetta both work for Obama. Wouldn't that suggest that they would agree on really important issues - at least in public?
Well, apparently they don't. And Obama's recent interview with the New York Times
editorial board provides lots of examples.
During that session, President Obama stated categorically:
"We ultimately provide anybody that we're detaining an opportunity through habeas corpus to answer to charges."
Then how do we explain the conflicting position taken by the President's Attorney General, Eric Holder, and the Department of Justice he runs?
In a filing in federal court, lawyers from Obama's DOJ said that detainees held at the Bagram air base in Afghanistan have no legal right to challenge their detention in U.S. courts. That's exactly the position taken by George W. Bush. And it's not what the president told the New York Times.
Human rights advocacy groups argue that Bagram detainees should have the same rights as Guantanamo detainees because they are de facto under U.S. control.
The U.S. government is holding more than 600 prisoners at Bagram. Some claim they are victims of "extraordinary rendition" by the U.S. Central Intelligence Agency (CIA), while many more say they have been tortured and abused at the facility just outside Kabul.
Back in early January, the ACLU filed court challenges to the Bush-era policy on behalf of four detainees taken to Bagram from outside Afghanistan. That policy, based on the Supreme Court's Boumediene decision, is now being reviewed by a U.S. Court of Appeals.
In that landmark case, the Supreme Court rejected the Bush administration's position that the detainees held at Guantánamo had no right to challenge the legality of their detention in U.S. courts. The ACLU - and many constitutional scholars -- now claim that the same right must be extended to the roughly 600 detainees held in U.S. custody at Bagram, many of whom have been held for years without access to legal counsel or the courts
"The Obama administration did the right thing by ordering Guantánamo closed. But a restoration of the rule of law and American ideals cannot be achieved if we allow 'other Gitmos' to be maintained around the globe," says Anthony D. Romero, head of the ALCU.
This issue is likely to generate even more contention in coming months, as Obama deploys thousands of additional U.S. troops to Afghanistan and a 60-million-dollar expansion doubles the capacity of the Bagram detention center.
Bagram was set up by the U.S. military after the U.S. invaded Afghanistan in 2001. Like Guantánamo, it was designed to be out of the reach of U.S. courts - a legal black hole
- during the so-called "war on terror," which lacks geographical or durational boundaries.
Like Guantánamo, it holds individuals from all over the world, including locations where there are no combat operations taking place.
Like Guantánamo, it holds terrorism suspects who were not captured on any battlefield.
Like Guantanamo, it houses victims of the Bush administration's extraordinary rendition program.
And like Guantánamo, there are well-documented reports of serious prisoner mistreatment and torture at Bagram.
But in some ways, Bagram is arguably even worse than Guantánamo because there is less judicial oversight, process and public scrutiny.The second major contradiction in Obama's New York Times interview concerned the issue of rendition
. As reported by Darren Lenard Hutchinson, a law professor at American University, the following exchange occurred:NYT
: Leon Panetta has said that we're going to continue renditions, provided we're not sending people to countries that torture. Why continue them at all?OBAMA
: Well, I think that you're giving a slightly more definitive response than (CIA) Director Panetta provided, but what I'll say is this: We are now conducting a review of the rendition policy, there could be situations, and I emphasize - could be - because we haven't made a determination yet, where let's say we have a well-known Al Qaeda operative, that doesn't surface very often, appears in a third country, with whom we don't have an extradition relationship, or would not be willing to prosecute him, but we think is a very dangerous person. I think we will have to think about how do we deal with that scenario in a way that comports with international law and abides by my very clear edict that we don't torture, and that we ultimately provide anybody that we're detaining an opportunity through habeas corpus to answer to charges. How all that sorts itself out is extremely complicated because it's not just domestic law its also international law, our relationship with various other entities. And so, again, it will take this year to be able to get all of these procedures in place and on the right footing.Prof. Hutchinson's analysis
: Obama chided the interviewer for overstating Panetta's position. Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue."
He added, "Many press accounts of Panetta's confirmation hearings construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture."
Obama told The Times
he would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed. But Prof. Hutchinson says "a CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement."
And, as for "diplomatic assurances" that the receiving countries won't torture the CIA's frequent flyers, well, our State Department has been receiving such assurances for years. They have come from countries like Morocco, Syria, Egypt, Jordan, Saudi Arabia - in other words, those with spotless human rights records.
Barbara Olshansky, lead counsel for three Bagram detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to "adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights."
She said she hoped that the Obama administration was merely signaling it was still working on its position regarding the detainee issue.
Let us pray!William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now writes on subjects ranging from human rights to foreign affairs for a number of newspapers ond online journals.http://billfisher.blogspot.com