Are there no depths to which the Republican Party will not sink in its unprincipled assaults on President Obama’s counter-terrorism policies? The latest unconstitutional monstrosity from the right’s lunatic fringe came courtesy of Keep America Safe, a toxic organization headed by Liz Cheney, the daughter of former Vice President Dick Cheney, who recently put out a disgraceful TV ad, “Who Are the Al-Qaeda Seven?” The ad questioned the loyalty and patriotism of nine lawyers in the Justice Department lawyers who had represented prisoners at Guantánamo before joining the DoJ. Cheney is joined on the board of Keep America Safe by Bill Kristol and Debra Burlingame.
To be fair, Cheney’s ad has backfired badly, drawing the ire not only of those on the left, but also of heavyweight conservatives, nineteen of whom signed a statement last week denouncing it, declaring, “We consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications,” and adding that the attacks on the lawyers “undermine the Justice system more broadly,” by “delegitimizing” any system in which accused terrorists have lawyers, whether that system is federal court trials or Military Commissions.
Those who signed the statement included former Solicitor General Ken Starr, former Deputy Attorney General Larry Thompson, former White House lawyer Brad Berenson, John Bellinger, the former legal adviser to the National Security Council and the State Department, and two former detainee policy officials in the Bush administration, Matthew Waxman, and Charles “Cully” Stimson, who, ironically, was himself forced to resign from the DoD in 2007 after starting a similar witch-hunt against corporate law firms whose lawyers represented prisoners at Guantánamo.
Interestingly, another former Bush official who signed the statement is Daniel Dell’Orto, the Acting General Counsel for the DoD after the resignation of William J. Haynes in 2008. Dell’Orto was close to those who established the Bush administration’s torture regime as the deputy to Haynes, who was one of Dick Cheney’s key “War Council” lawyers, along with David Addington, John Yoo, Alberto Gonzales and Timothy Flanigan.
Further criticism came from the Conservative author and lawyer Paul Mirengoff, who “contrast[ed] what Cheney is doing to the anti-communist crusades launched by Sen. Joseph McCarthy,” as the Huffington Post’s Sam Stein explained, following a call to Mirengoff, and from Peter D. Keisler, an Assistant Attorney General in the Bush administration’s Justice Department, who told the New York Times that it was “wrong” to attack the lawyers, and that “There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients.”
Moreover, in the Wall Street Journal on March 10, former Attorney General Michael Mukasey wrote that Keep America Safe’s argument was “both shoddy and dangerous.” Mukasey pointed out that “a lawyer who undertakes to represent someone whom his neighbors — perhaps rightly — revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil’s Island for little more than being Jewish.”
This is all very encouraging, of course, because the only people who can legitimately complain that lawyers who worked on behalf of prisoners at Guantánamo shouldn’t work for the Justice Department and are, essentially, traitors to their country, are those who believe that time should have stopped before the Supreme Court ruled in June 2004 that the prisoners had habeas corpus rights; in other words, the right to ask why they were being held.
The only reason that the Supreme Court made this decision was because prisoners in Guantánamo who stated that they had been seized by mistake had no way of challenging their detention. This was because the Bush administration had created a legal black hole at Guantánamo, holding men (and boys) neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, to be put forward for federal court trials on charges related to terrorism, but as “enemy combatants,” a novel category of human being with no rights whatsoever.
Those who worked on the prisoners’ cases may have been doing so for reasons that some Conservatives find distasteful, but the blunt truth is that those who took on Guantánamo cases were — and still are — working as part of a fully functioning civilized country that respects the rule of law, and those who regard such actions as a sign of fraternizing with the enemy are, if not just opportunistic leeches, playing the fear card, the kind of deluded people that America can do without, apologists for the dictatorial powers seized by President Bush that would have been anathema to the Founding Fathers.
Sadly, however, much of the damage wrought by Liz Cheney and her colleagues will never be undone. In a country where a large percentage of the population is permanently whipped up into a frenzy regarding the Obama administration’s response to terrorism by opportunistic broadcasters and lawmakers, who have seized on national security issues as a winning card in a relentlessly negative campaign, it’s probable that many of the Conservative voices criticizing Liz Cheney will have been ignored.
Even more worrying, however, is the fact that, despite this backlash in defense of America’s foundation as a country based on the rule of law, other Republican lawmakers continue to insist that they should be dictating the Obama administration’s policies, even though their proposals smack of the kind of hysterical overreaction that got us in this mess in the first place.
President Obama made a terrible mistake last May when he accepted calls to revive the Military Commission trial system for Guantánamo prisoners, and also signaled his willingness to continue holding other men indefinitely without charge or trial. A government driven more by principles and less by pragmatism would have insisted, as Obama suggested on taking office, that the only acceptable ways of dealing with the prisoners was to put them forward for federal court trials, or to release them.
This failure has given succor to those who are desperate to come up with novel ways of dealing with terrorist suspects that would have been far more difficult to launch had the administration acted more decisively. When Attorney General Eric Holder announced in November that five men — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he was following a course that reflected the best of America’s legal traditions, and, as he recently told Jane Mayer of the New Yorker, “I don’t apologize for what I’ve done. History will show that the decisions we’ve made are the right ones.”
Nevertheless, by also reviving the Military Commissions, the administration allowed itself to be ambushed by critics who stirred up opposition to the decision to hold federal court trials, which has led to a ludicrous situation in which Sen. Lindsey Graham, in some unholy alliance with Obama’s Chief of Staff, Rahm Emanuel (who “walked out” the door whenever Guantánamo was mentioned, according to a source cited by Mayer) has been pushing Obama to reconsider the decision to try the men in federal courts.
Sen. Graham is not the only one pushing at Obama’s self-inflicted vulnerability on Guantánamo and related issues. Since the failed plane bomber, Umar Farouk Abdulmutallab, was apprehended on Christmas Day, countless critics have charged headfirst into the lawless space inhabited by Liz Cheney and Keep America Safe, arguing that Abdulmutallab should not have been interrogated by the FBI, read his rights, and charged in a federal court, and, in some cases, arguing that he should specifically have been waterboarded and sent to Guantánamo.
This, sadly, is no fringe activity reserved for lunatics, and just last week, Sen. John McCain and Sen. Joe Lieberman introduced a bill, the “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010” (PDF), in which they proposed to ban civilian trials for those designated by the federal government as “unprivileged enemy belligerents.” The bill defines an “unprivileged enemy belligerent” as “an individual who (a) has engaged in hostilities against the United States or its coalition partners; (b) has purposely and materially supported hostilities against the United States or its coalition partners; or (c) was a part of al-Qaeda at the time of capture,” meaning that it could easily extend to anyone who allegedly supports hostilities against the US — including, it would seem, American citizens.
Moreover, the bill proposes stripping these “unprivileged enemy belligerents” of any of the legal rights usually afforded those accused of crimes in the United States, proposing that they should be taken into military custody for the purposes of interrogation and determination of their status, with the possibility that, after interrogation and determination of status, some might be designated as “high-level detainees.” In addition, the bill proposes holding these men “for the duration of hostilities,” and, if desired, putting them forward for trials by Military Commission.
In a ludicrously overblown press release, Sen. McCain ignored all the evidence that Abdulmutallab’s interrogation had provided useful information, stating that the primary reason for introducing the legislation was “to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”
We are, I suppose, fortunate that Sen. McCain did not win the 2008 presidential election, as this bill so shockingly echoes almost every vile innovation that the Bush administration established in its “War on Terror.” However, it is depressing that, while Liz Cheney has provoked some Republicans to remember that America already has laws for dealing robustly and fairly with terrorist suspects as part of its criminal justice system, other Republicans are still intent on undermining history and America’s self-image by insisting that terrorists are warriors, ignoring the Military Commissions’ lamentable history of dealing with terrorist suspects, ignoring the federal courts’ successful history of dealing with those very cases, and, in the case of Senators McCain and Lieberman, apparently believing that resuscitating the darkest years of modern American history will serve any useful purpose at all.
Like Liz Cheney, McCain and Lieberman seem to have forgotten that dictators or those who support them, rather than elected officials who are obliged to uphold the US Constitution, are the only people who believe in holding people in arbitrary detention, neither as prisoners of war nor as criminal suspects, but as “enemy combatants” — or in 2010’s remake, “unprivileged enemy belligerents” — who can be held indefinitely, and interrogated in conditions that, when last tried out in the wake of the 9/11 attacks, led inexorably to the torture that John McCain used to deplore.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
While on the one hand, condemning Liz Cheney seems to be comparatively low-hanging fruit (after all, even Bush Administration officials have condemned Cheney’s fear-mongering, etc., etc.), the big picture, however, is that everything seems to continually be ratcheting in one and only one direction, i.e. we Americans are little more than helpless children who must be protected at all cost, and the only way to protect us from the swarthy Muslim bogeymen (all of whom hate us for our freedom) is with the brutal simplicity of the police state: we must destroy freedom to save it.
To be sure, Sen. McCain has not acquitted himself well, feeling the need to position himself to the right of Mussolini in order to hold on to his seat in a tough primary challenge from talk radio hatemonger and ex-Congressman J.D. Hayworth in a battle for the hearts and minds of Arizona’s (apparently Neanderthal) Republican primary voters. But at least McCain didn’t explicitly campaign against the Bush counter-terror program. Obama did.
The fact of the matter is, with the exception of a commitment to the safety and security of large financial institutions, President Obama simply has shown that he has no core principles: everything seems to be allegiance ruled by expedience. Close Guantanamo in a year? Sounds good. Oh wait… feckless Democrats in Congress are getting the vapors and the Washington Post are accusing the Administration of being “soft on terror”… Transparency? Great… until we actually have to, you know, turn over any information that might embarrass the last Administration… in which case we will argue “state secrets” until red, white and blue in the face… Civilian trials for accused 9-11 masterminds? Excellent… oh wait… there’s a WHIFF of discontent from the Mayor of New York… and on and on we go. Simply put, Obama has created a vacuum of leadership so large that one can fly a 747 full of Liz Cheneys and the whole Cheney extended family (this article describes their favorite family holiday: http://www.theonion.com/content/news/cheney_waits_until_last_minute into… so, surprise, surprise, fear-mongering and lawyer-bashing that would make any self-respecting fascist blush are now “mainstream”. And THAT’S what it’s about. The sorts of things that Liz Cheney and her fascist friends are spouting are just not supposed to be spoken in polite company… but now not only is it spoken in polite company, this crass hate-mongering totalitarianism is now considered proper and legitimate discourse. Sure, they’ll be shouted down… THIS time. But their point has been made, and the bar has been moved ever closer to the end desire: “the total security state.”
The other interesting point seems to be that “the second generation is never as good as the first”… we have a group consisting of Liz “Dick’s daughter” Cheney and Bill “Irving’s son” Kristol… and come to think of it, Ms. Burlingame is the sister of the pilot of AA 77 (which crashed into the Pentagon on 9-11).
Don’t know what to make of it. I just think condemning Liz Cheney on her own terms isn’t good enough; there’s got to be some sort of “meta-“condemnation that refuses even to acknowledge her legitimacy to speak at all– kind of a “reverse golden rule” (since she of course challenges the legitimacy of our speaking on these subjects, we challenge the legitimacy of she speaking as well.)
Don’t know. I suppose name-calling is a good start.
Great to hear from you, as always, and thanks for the concise rundown of Obama’s inability to have principles, McCain positioning himself to the right of Mussolini, and Liz Cheney as low-hanging fruit. I’ve told you this before, but you have an unerring ability to come up with T-shirt slogans/designs. I want one of McCain standing next to Mussolini (on his right, obviously) and one of Liz Cheney that says simply, “low hanging fruit.” That would make people think that it had some sexual connotation, I presume, which might make it even funnier, although of course there isn’t. Come to think of it, Bill Kristol and the same slogan would be excellent too!
Mike Chaney sent the following message, which hit the nail on the head:
It should be remembered that McCain “has purposely and materially supported hostilities against the United States” by making propaganda broadcasts for the North Vietnamese while in captivity in Hanoi and is himself, therefore, an “unprivileged enemy belligerent”.
Over on Facebook, I had the following fascinating exchange with Deborah Emin of Sullivan Street Press, which I thought I’d reproduce here:
Your work is tremendously important. I am so glad you are there making the world pay attention to an egregious human rights issue most would rather ignore.
I believe Cheney is enjoying all this hysteria not because he thinks he is correct. Rather his actions cause his net worth to increase with each shock wave of fear he inserts into the body politic.
McCain and Lieberman are criminal fools who abuse their power for different reasons. Cheney and his gang are just after the money.
If we could pull the plug on that through serial lawsuits that ate at him daily he might shut up.
That is a discussion though for another day.
Thanks again. I am in awe of your persistence.
This was my reply:
Thank you, Deborah. Your words mean a lot to me, and your analysis of the prevailing problems are accurate, I think. Would you mind if I posted your comments on my website? I think others would find them useful too.
Deborah then replied:
I am pleased to share these insights with anyone who may be able to do something with them.
Some day I hope to meet you. Truly Andy your dedication and focus are an inspiration.
My abilities are more akin to a novelist’s. I want to see why Cheney makes the decisions he makes and how his personality causes him to use obfuscation as a means to an end.
Personally the man revolts me. In fictive terms he is in some ways a stock character but without much redeeming inside him.
Sadly this country encourages people like him and is in awe of him.
And I replied:
Thanks, Deborah. I deal so much with facts, which I try to use to bring the stories of the victims of the “War on terror” alive to audiences as human beings, that I have less time to investigate the psychology of the major players, but I too wonder about the minds of the architects of the torture regime — and, in particular, Dick Cheney. Did you ever read John Nichols’ biography? I reviewed it here:
As Nichols paints Cheney, it’s impossible to work out what it was that made him so cold and callous, and it remains an enigma to me. What I have learned, however, primarily through Jane Mayer in “The Dark Side,” is how even his friends noted that he changed after 9/11 and became considerably more paranoid.
So we have, I think, different things going on: the desire for a good legacy, which all these ego-crazed monsters have (see also George W. Bush, Tony Blair), and the ongoing attraction of money and power in that dysfunctional world inhabited by those who weigh life’s meaning in no other terms.
As for whether he believes his own assertions about the efficacy of torture — I don’t know, but I fear that maybe he does, just as Tony Blair appears to be unwavering in his assertions that illegally invading Iraq and slaughtering countless Iraqi civilians was “the right thing to do.”
Thanks Andy. I will read your review and respond later. I wrote a piece about Cheney’s change after 9/11. I credit shame, humiliation. The man had been caught with his pants down. (Honestly men and their pants deserve a Gogol these days.)
Much as shame causes many to commit mass murder, I think a certain Columbine effect hit both Bush and Cheney.
Think of his relation to Nixon as well.
Like Nixon he sees himself as the classless outsider.
You won’t hear him mentioning God either. He is a heathen through and through.
Back at you later.
(to be continued)
Deborah then got back to me:
Excellent. I need to read John Nichols’ book.
Lynn Cheney too is one tough character.
I think the secrecy/privacy issues fit with their shame issues.
Btw — Cheney was a Congressman not a Senator. Another club he could not get into.
Please keep us informed. These draconian laws and the peoples’ lives they affect need to be written about until we can overcome these forces in government that trade on fear in order to pursue their own personal goals.
And my reply:
Thanks for spotting that in the review, Deborah. Better late than never (5 years!) for a correction!
Always good to hear from you.
I can’t tell you how much I appreciate your work. And this McLiebermanGrahamCheney thing is giving me a terrible headache. I am surprised at Mukasey. Strange. Mukasey should have mentioned John Adams as well. Other conservatives hate it when the founding father they’ve decide to adopt contradicts them (from the grave).
TD, right of Mussolini. Thank you for that laugh. And what about Lieberman? Back here in CT Joey aint doing too good with 25-30% approval ratings, plus 90% public expressing opionin on that.
Thanks, mui. Much appreciated. Always good to hear from you.
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