“Over One Hurdle” To Prosecuting Bushco

According to the London Times, Lawrence B. “Larry” Wilkerson, a retired colonel of the US Army and a former top aide to Colin Powell, has revealed that the Bush administration decided that keeping innocent people locked up was an acceptable cost of the war on terror — similar to the way Massey Energy decided paying fines is an acceptable cost of running a dangerous coal mine.

Col. Wilkerson photo

Lawrence Wilkerson, former chief of staff to then-Secretary of State Colin Powell (Susan Walsh/Associated Press) Read more: http://www.cbc.ca/world/story/2009/03/19/guantanamo-detainee-innocent.html#ixzz0keJodedK

In a signed declaration to support a lawsuit filed by a Guantánamo detainee and released to the Times of London, Colonel Lawrence Wilkerson claims that President George W. Bush knew that the majority of the hundreds of men detained in that prison center had no terrorist links.

Tonight on Countdown, the Keith Olbermann show I heard this: Wilkerson’s having testfified under oath that VP Cheney, SecDef Rumsfeld, and Bush41 knew — and did not care — that many of the detainees in Guantanamo were in fact innocent may make bringing them to trial easier. Lt. Cmdr. Charles Swift (the JAG specialist who won the Hamdan Case) says the policy at Guantanamo was “you have to prove that we haven’t made a mistake.” Habeas suits keep being decided “at an incredible rate for the detainees.” More and more of the Guantanamo prisoners are being found to have been innocent, and that puts a lot of pressure on President Obama to close Guantanamo, Swift says. No longer a JAG officer, he now practices privately as an attorney.

Wilkerson writes:

The second dimension that is largely unreported is that several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.

But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough: the dead in a field in Pennsylvania, in the ashes of the Pentagon, and in the ruins of the World Trade Towers. They were not about to admit to their further errors at Guantanamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released. I am very sorry to say that I believe there were uniformed military who aided and abetted these falsehoods, even at the highest levels of our armed forces.

The Associated Press carries more:

Many detainees locked up in Guantanamo Bay were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants, a former Bush administration official said Thursday.
“There are still innocent people there,” Republican Lawrence B. Wilkerson, former chief of staff to then-secretary of state Colin Powell, told the Associated Press. “Some have been there six or seven years.”
Wilkerson, who first made the assertions in an internet posting on Tuesday, told the AP he learned from briefings and by communicating with military commanders that the U.S. soon realized many detainees held at the U.S. military prison in Guantanamo Bay, Cuba, were innocent but nevertheless held them in hopes they could provide information for a “mosaic” of intelligence.
“It did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance,” Wilkerson wrote in the blog.
He said intelligence analysts hoped to gather “sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified.”
Wilkerson, a retired Army colonel, said vetting on the battlefield during the early stages of U.S. military operations in Afghanistan was incompetent with no meaningful attempt to discriminate “who we were transporting to Cuba for detention and interrogation.”
Read more: http://www.cbc.ca/world/story/2009/03/19/guantanamo-detainee-innocent.html#ixzz0keQma7EU

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15 responses to ““Over One Hurdle” To Prosecuting Bushco

  1. grahamfirchlis

    Some while after he left office, perhaps in 2006 or so, I remember reading that Powell had been interviewed by the FBI regarding the claims about WMDs made at the UN. This was at the time that the Iraq war justification claims were unraveling, and Bush/Cheney were blaming everyone including the CIA and the FBI for misleading them. It was a short piece, no more than a couple of paragraphs, and ended – IIRC – with a statement that Powell was “cooperating fully.” That formulation is usually used when a suspect has decided to become a cooperating witness, and the public statement by FBI is part of an immunity deal. Subsequently I read that Wilkerson was also being interviewed, but I didn’t see any followup news on him.

    Wilkerson and Powell, both having been aware of the Iraq WMD/al-Qaeda lies and the many innocents imprisoned while they were still in office, could also be culpable and must certainly done what they could to help themselves with regard to any possible future prosecution.

    In filing this declaration, he must have had some assurances from DOJ that he would be protected from prosecution, and by including Powell’s awareness of the contents of the declaration he also signals that Powell has those assurances too.

    I think the Obama administration has a tough choice here. They feel, probably accurately, that can’t be seen as being vindictive or there will be a great price to pay politically and so an overt attack on BushCo is not on their active agenda. On the other hand there has been a steady drip-drip of tidbits originating within CIA and FBI and DOJ about the criminality at the very top including Bush. Letting Yoo and Bybee slide is part of that pattern, setting them up for possible future testimony where their pleading the 5th will not be an option.

    If there is a groundswell of outrage among Americans for what BushCo has done, real demand for investigation and prosecution, I think Obama will not stand in the way. If, on the other hand, a majority of the people don’t seem to care then he’ll probably do nothing. It is a shame that politics plays such a dominant role, but it does and I can’t really blame Obama for recognizing that.

    I continue to hope that as more becomes public an outcry will emerge, and justice will be done. This is certainly a big step forward on that path.

    [Here’s the Times of London direct link.]

    • g2-37190d24041196ff0ae862db799fb502

      Thanks for the link. I agree with you fully. I think if you view the Olbermann piece (should be up on the website by Monday) some more of my optimism will become clear. There is one court case decided (not Hamdan) and another pending that, according to the former JAG officer, bear heavily on the prospects for a successful prosecution of Cheney (primarily), Bush, perhaps Rumsfeld, maybe others.

  2. JAMES SCAMINACI III

    Obama has already signaled that he is not interested in investigating the Bush administration for violating the Constitution with their “war on terror” activities.

    Moreover, the Obama adminstration has gone to great lengths to show that it is continuing many of the Bush era unconstitutional activities.

    Furthermore, the Obama administration has now claimed that it has the right, which the Bush people never claimed, to authorized extra-judicial assassination of an American citizen without charges being brought and without a trial.

    We will never know how much Secretary Powell and Colonel Wilkerson knew until all the documentation is investigated by a competent prosecutor. Their proximity to power does not mean they had access to all the documentation or attendance at critical meetings.

    Cheney and Rumsfeld could have considered that the two did not have a “need to know.”

    The “war on terror” has distorted and perverted our values and judicial system. It is difficult to accept that the majority of Americans would sacrifice constitutional freedoms secured by blood and treasure for a promise of “national security” that violates the Constitution and sets us on a path of “perpetual war.”

    Welcome to 1984.

    • grahamfirchlis

      Hey James. Thoughtful commentary, as always, thank you for that.

      Obama “signaled” is an understatement. I agree, I don’t think he wants to do anything there, it will only make everything else even harder to do than it already is, and also I think his nature is to avoid controversy whenever possible. That said, the way he works is to send signals in all directions and see what happens. Which ever way the wind blows, that’s where he will tend to go. It is Leading By Following, try to get the community to think and then where ever their enthusiasm lies is the right – where “right” equals “most likely to be successful” – path to take. Not my ideal, but better than the regressive totalitarianism of the Right.

      The “extra-judicial assassination” question is, as I think you know, much more complicated. There is no rule of law that sets aside special protections for American citizens who engage in acts of war against this country. Certainly they can be killed in battle, and if captured they can be shot or hung with little procedural requirement. That is nothing new, either for America or any other country. Treason is a dangerous undertaking, and ends badly far more often than not. Violent treason will always bring a violent response, anyone who chooses to do so must bear the consequence and I cannot muster much sympathy for those who take that path.

      To the extent that the Obama administration is continuing to argue legal support for laws passed during the BushCo era, that is fine with me. Let the issues be settled by the courts, not by administrative fiat or neglect that can easily be reversed by the next Republican administration.

      As to the “values and judicial system” of America, you clearly have a higher opinion of them than I. Perhaps growing up with the opportunity to sit at the dinner tables and hear first-hand the stories of American citizens who were stripped of their rights and property and imprisoned under horrible conditions during WWII for no crime at all led me to be somewhat jaundiced, but as I see it we as a people are invariably cruel when we are frightened. It is an ingrained trait, not an aberration.

      There is much in America that is good, but there is also much that is bad. We have a long ways to go to bring the balance to where it should be. I don’t blame Obama for all of what has been and still is, and so far I am actually pleasantly surprised at how much he has done that is decent and good. My true enemies are elsewhere and, speaking only for myself, I intend to stay focused on them.

      • JAMES SCAMINACI III

        Actually, there are a number of constitutional amendments that deal with pre-meditated extra-judicial assassination.

        Here is what I posted at AlterNet on the subject.

        I am going to put this bluntly and straight to the point. The extra-judicial assassination of an American citizen is an impeachable offense under the U.S. Constitution.

        It matters not one wit to me that I voted for President Obama. The Constitution is the supreme law of the land, not a Presidential finding by President Bush or by President Obama.

        Article VI: “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

        Article III, Section 3, definition of treason: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

        Even if one assumes that Anwar al-Awlaki has committed treason, under the Constitution, Article III, Section 3, “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in OPEN COURT.” (emphasis added)

        If you cannot convict a person of treason unless it is in open court, where is the constitutional right to assassinate an American citizen without a trial?

        Fifth Amendment: “NO PERSON SHALL BE be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury…nor be DEPRIVED OF LIFE, liberty, or property WITHOUT DUE PROCESS OF LAW” (emphasis added).

        Sixth Amendment: “In ALL criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him…” (emphasis added)

        Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

        It is forgotten that the Eighth Amendment prohibited the government from imposing “excessive bails and fines” because that was one way of compelling the accused to make a plead of guilty or not guilty in court. This amendment therefore outlawed torture.

        If the government cannot impose excessive bails, fines, or unusual punishments to compel the accused to enter a plea, where is the constitutional authority to place an American citizen suspected of a crime under a death threat to make him enter a plea or voluntarily appear before a magistrate?

        Fourteenth Amendment: “NOR shall any State DEPRIVE ANY PERSON OF LIFE, liberty, or property, WITHOUT DUE PROCESS OF LAW.” (emphasis added)

        There is no constitutional justification for the extra-judicial assassination of an American citizen, including one whose alleged crime is treason.

        The extra-judicial assassination of an American citizen would almost surely fall under Article II, Section 4: “The President, Vice-President and all civil officers of the United States shall be removed from office on impeachment for, and on conviction of, treason, bribery, or other high crimes and misdemeanors.

        So, for the record, President Obama should be forewarned that extra-judicial assassination of an American citizen suspected of treason would be an impeachable offense.

        END ALTERNET COMMENT

        Now, if US forces encounter an American on the battlefield, well they take their chances. Nothing protects them except the laws of land warfare which prohibit summary execution. In that case, normally, they would be treated as a POW, but these days I do not know.

        But, the Obama administration is deliberately targeting for execution an American citizen who is only alleged to be a terrorist and is only alleged to have committed treason.

        Under those circumstances all constitutional protections are afforded him.

      • grahamfirchlis

        James, thanks for the response. You are correct about the law as far as analysis of what can be done with an American citizen who is captured or arrested. But as you point out, the rules are quite different when the encounter happens as a part of open warfare, as is at least to my eyes the case here.

        I simply see no justification in law for imposing a difference between treatment afforded an American citizen versus a non-citizen when either one is actively engaged in warfare against the United States. So long as they remain in the field of battle, one that in this case they have self-defined as blurred within a civilian population where innocents are used as human shields, then these kinds of responses are neccessary and any collateral death is their responsibility.

        Having been accused, all these citizens must do to avail themselves of the rights you cite is to surrender. Our laws on treason are designed to protect the accused from the state, and the bar against conviction is set very high.

        So long as they continue to fight, however, they do not have any more protection than any other combatant – nor should they. It is simply intolerable that anyone should be able to use American citizenship as a shield from which to violently attack the very country whose protections they claim.

        As to trial, that may depend on how they come to be detained. Once captured, however it happens, they are entitled to trial by a regularly constituted court with legal assistance and the right to defend themselves and confront their accusers. This does not mean a civilian court; a military tribunal that meets those requirements will do and in a battleground setting such trials are clearly permitted. In that case the proceedings may be relatively restricted and streamlined so trial need not be long, and the opportunity for appeal may be severely circumscribed.

        If they willingly surrender, however, then there would certainly be greater sympathy for and more justification for a civilian court trial. Even captured American citizens have enjoyed those rights in civilian trials several times since 2001, and that would be my preference, but under the law a military tribunal would suffice.

        I see no slippery slope here, from which we are descending into some sort of totalitarianism. I see instead a few individuals who have decided to take up arms against their own country, and in doing so abandoned some due process rights that would protect them if their acts were limited to peaceful speech.

        I have no patience for those who engage in violent behavior including armed insurrection, regardless of from which locale they act or with what cause they align. If they employ violence or support those who do, then they are lawfully subject to a violent response just as would be the case with a common criminal.

        In my view, the findings by Bush and now by Obama are unneccessary. Having identified these individuals as combatants, the government has every right – as an act of war -to pursue and apprehend them if possible or kill them if the opportunity arises. This is true within or without the country’s borders, and needs no special exception. Killing in war is not summary execution but rather a predictable consequence, and it certainly is not extra-judicial because adjudication does not apply during armed conflict.

  3. The Other Sarah

    and from that link this quote:

    Lt. Cmdr. Charles Swift gets to talk about this; he was one of the attorneys for the Hamdan VS. Rumsfeld case. Lt. Cmdr. Swift thinks what’s been revealed in this document might get over the state’s secrets hurdle. The Detainee Treatment Act took away all Gitmo detainee rights to sue. Since the case in question is a civil case as opposed to a criminal or Constitutional nature, the standard of the burden of proof is much less strict. A federal court judge did order one of the Gitmo detainees to be released today. Wow, the same judge that made that decision today was a principle actor in the Hamdan case, too!

    This is not the first time, let me add, that a federal judge has ordered a detainee released since 20 January 2009. Whether this order will avail the detainee remains to be seen.

  4. grahamfirchlis

    Belated congratulations to Sarah for raising this, our 100th post!

  5. The Other Sarah

    Thank you, Graham, both for noting the number of posts we’ve hit and for answering the contention that it’s different when an American continues to make war on his fellow Americans than when a foreigner does. It’s not clear to me what citizenship, though, this imam is claiming these days.

    I’m convinced that he’s been instrumental in driving attacks over the past several years. I’d love to have him surrender and stand trial for his part in the Fort Hood shootings, just as one example. I don’t think he’s got enough guts to do that, though.

    Far as I’m concerned he’s a way bigger danger to the US than that poor misguided John Walker Lindh fellow was.

  6. JAMES SCAMINACI III

    We’ve gotten into a fine mess by distorting our Constitution.

    Bush and Obama want to define the battlefield to be the entire planet for an indefinite period of time.

    As far as I know, this American citizen is in Yemen and apparently is in contact with people who have committed terrorist acts.

    None of us know the degree of involvement.

    All of the assertions are based on “trust us, if you knew what we know, you would think differently.”

    I’ve been in the know and it is not always so clear cut as people think. Or, think of how many times a prosecutor has thought he had a defendant convicted only to have the defense lawyer either shred the credibility of the evidence or show malfeasance on the part of the prosecution.

    But, my argument is that the Constitution already provides the definition of terrorism and the trial for terrorism.

    On the other point of the slippery slope, I would hope you would reconsider.

    Let’s assume the Obama administration does assassinate him. What were the criteria for determining he was a terrorist? What was the legal justification? Will the criteria be relaxed with each succeeding case? Suppose the American citizen is not in Yemen, but in America? Is the battlefield America with no rules or rights applicable to Americans?

    Once the President steps outside the Constitution, who is to say how far he or she will go?

    What will stop him? A Congressional leadership that is completely silent right now, except for Dennis Kucinich? Public opinion that is so afraid of the word “terrorist” that they remain silent? The mainstream newspapers that basically print White House press releases?

    We know that John Yoo and the other lawyer wrote legal memos that were flawed. Actually, the memos would get them indicted for war crimes.

    What are the White House and Justice Department legal grounds for what Kucinich calls “extra-constitutional, extra-judicial” assassination?

    Sorry for the long comment, but I just think this issue is important.

    • grahamfirchlis

      Hey James. Never need to apologize for taking the time and effort to be clear and thorough. Important issues are worth exercising.

      I’ll leave the theoreticals for another day; surely there will be one! For now, let me restate where I differ in my approach to the aspects that are fairly concrete.

      Regards the scope of the battlefield, I believe that has been chosen by the enemy. Neither Bush nor Obama nor anyone here asked them to run around in civvies, to operate outside of state controls, or to insinuate themselves within the civilian population across many national boundaries. Those are all their choices.

      While I undersatand that they made these choices because they couldn’t hope to win a conventional conflict, that fact does not buy them an automatic free pass from being tracked down and captured or killed, where ever they may be lurking.

      That this combatant is an American citizen doesn’t to my mind buy him anything once he became involved substantively with an enemy force. The same set of responsibilities and consequences prevail. We killed a lot of American citizens who fought for the Confederacy during our Civil War, and from the Union perspective they were still citizens since the secession was not recognized as legal. That sort of settles it for me with regard to presidential authority, including on American soil.

      I’m wondering if there are other precedents, perhaps during WWII with American citizens who served with the Nazis? Don’t have time to track that down right now, but I would be surprised that any court has ever held they couldn’t be assassinated.

      Your point on what we, you and I, don’t know is not germain as far as I’m concerned. I don’t expect Obama will be giving either of us a call with the details. Despite the fears on both Left and Right, our government simply doesn’t have the resources to go willy-nilly killing everybody out there that pisses them off. I seriously doubt that they’ve decided to go after this guy without significant cause.

      I say this as someone who has had the experience of being a “person of interest” to the FBI and perhaps other agencies for a decade or so; for all I know I maybe still am. They came and talked to me, repeatedly, they asked around with the neighbors, again and again, and most annoying they talked to prospective employers and cost me a couple of jobs. But they didn’t arrest me or torture me or shoot me, perhaps because they really don’t do that very often on suspicion alone or maybe – as was true – they realized I was actually very far removed from and opposed to any anti-government criminal activity.

      But it was also true that, however unwittingly, I had at one time been very close to those who later were violently rebellious. That was my bad. Though irritating, the Fibbies were just doing their jobs and I don’t hold any grudges for that.

      If you take up violence, you have to accept that it will be met by violence. Issues like “fair” and “right” cease to exist in any meaningful way. But there is another path available, rather than continued jihad. If this guy is innocent, or wants to avoid being assassinated, he should take himself and his lawyer to the US consulate and surrender.

      I’ll grant you that under Bush that would have been a dicey proposition; I’d have had to think it through very carefully, for sure. But under Obama and with some careful planning like interviews with al Jazeera and CNN beforehand, I can’t imagine that he would get anything but careful treatment and a civilian trial, all of it under the rules you’ve cited.

      Our systems are imperfect but they are all we have, and acting outside them is a dangerous business, always, for everyone involved. I assume this fellow has thought it all through. I assume Obama has too.

      Please don’t think I take this position lightly. Violence and death neither one are subjects to be dealt with casually. I’ve given it careful consideration, and while the decision is close I’ve come down on a different side of it than you. I hope that difference will not diminish our mutual regard.

  7. JAMES SCAMINACI III

    Graham, I would just like to leave this link from Glenn Greenwald on accepting government assertions regarding terrorism as fact.

    I highly recommend the article plus the article that Greenwald cited and recommended.

    Greenwald’s article:

    http://www.salon.com/news/opinion/glenn_greenwald/2010/04/21/hatfill/index.html

    The recommended article:

    http://www.theatlantic.com/magazine/archive/2010/05/the-wrong-man/8019

  8. JAMES SCAMINACI III

    Hey, a difference of opinion is always good. We probably agree on many issues and there are probably points of agreement on this issue.

    I was thinking of this today before I read your comment. It’s a hypothetical. But, it goes to the issue of a slippery slope.

    Assume the following could happen without going into the details.

    Suppose there was a group opposed to the government and located in the USA. Assume they had done other attacks. Assume their higher political command had bragged about the attacks and boasted of more to come. Suppose the group was planning a decapitation attack against the federal government during the State of the Union. Suppose the FBI got wind of the plot. But, the plot is not at that mythical Jack Bauer moment. In other words, this is not the ticking time bomb.

    Should the FBI do:

    A. Go to the President, get a presidential finding authorizing a government first-strike against said group. Take them out–no arrest warrant, no trial.

    B. Go to a judge, get warrants for wiretaps and searches, and at a time and place of the FBI’s choosing make arrests, read them their rights, provide a lawyer, and try them in civilian court.

    How does that scenario differ from the one we have been discussing? I won’t say arguing because we’re not.

    In both cases, they are allegedly committing treason. They are both planning an attack against our fellow citizens.

    Supposedly, the war on terrorism is global and US soil is not exempt.

    If my hypothetical is correct, do you still agree that the President can waive aside the Constitution and conduct extra-constitutional, extra-judicial assassinations.

    Even if you limit the hypothetical to one person. Can you see the slippery slope, or, am I wrong on the hypothetical?

  9. The Other Sarah

    James,
    My thought on this is that the FBI shouldn’t repeat the failures of Waco or Ruby Ridge, regardless of where the action might take place.

    But from my perspective this is a hypothetical that may or may not be real-time.

    This cleric, on the other hand, is not within the reach of the FBI (he’s overseas, and they’re not).
    Now, a warrant via Interpol, assuming it’d be served and he’d be jailed, would be a good thing;
    but where he is, Interpol’s reliability is … um … not assured, shall we say?

    From the perspective of prevent-defense, and given that he’s tied to a mass murder here in the states (at Ft. Hood last year), I’m convinced that stopping him from influencing or inspiring more such acts constitutes sufficient risk to put out wanted posters and offer rewards. He is as much an American Taliban as that misguided boy John Walker Lindh ever was, except I think he’s doing his dirty work deliberately and as a puppetmaster. (Not unlike, say, Dobson or Robertson or their stunt doubles like Ted Haggard.)

    Sometimes the needs of the many (a country free of terrorism) truly do outweigh the needs of the few (a handful of fundy preachers or your hypothetical plotters — had somebody ratted out McVeigh the OKC bombing could’ve been avoided) or the one (a fundy preacher advocating jihad against the military to its members, say).

    But I’m not sure, based on Ruby Ridge (a dog and a kid killed and a horrendous mess afterward; in company with the Amateur True Fools, what the Flyin’ Big Idiots attempted in Waco 15 years ago has been commemorated heavily the last couple weeks) and the Branch Davidian sieges, that it’s the F. B. & I. we should be entrusting with this work. Their record is,
    shall we say, not stellar.

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