John Yoo writes an editorial today in which he blasts Obama for the decisions he has been making regarding Gitmo and the interrogation of terrorists:
During his first week as commander in chief, President Barack Obama ordered the closure of Guantanamo Bay and terminated the CIA’s special authority to interrogate terrorists.
While these actions will certainly please his base — gone are the cries of an “imperial presidency” — they will also seriously handicap our intelligence agencies from preventing future terrorist attacks. In issuing these executive orders, Mr. Obama is returning America to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001. He’s also drying up the most valuable sources of intelligence on al Qaeda, which, according to CIA Director Michael Hayden, has come largely out of the tough interrogation of high-level operatives during the early years of the war.
The question Mr. Obama should have asked right after the inaugural parade was: What will happen after we capture the next Khalid Sheikh Mohammed or Abu Zubaydah? Instead, he took action without a meeting of his full national security staff, and without a legal review of all the policy options available to meet the threats facing our country.
What such a review would have made clear is that the civilian law-enforcement system cannot prevent terrorist attacks. What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)
~~~Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.
The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will respond to no verbal questioning or trickery — which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it.
John Yoo also goes into the the staying of all military commission trials, which Yoo believes is a prelude to closing down the commissions entirely and transferring the cases to the US court system. A disasterous decision. While Yoo believes the interrogation practices used during the Bush years are all but gone, Obama backers are not so sure. Here is the World Socialist website:
On the question of so-called “harsh interrogation techniques,” i.e., torture, Obama’s orders leave room for their continuation. White House Counsel Gregory Craig told reporters the administration was prepared to take into account demands from the CIA that such methods be allowed. Obama announced the creation of a task force that will consider new interrogation methods beyond those sanctioned by the Army Field Manual, which now accepts 19 forms of interrogation, as well as the practice of extraordinary rendition.
Which in reality means its the same policy as what was in effect during the Bush years. Oh, and on the Army Field manual:
Retired Admiral Dennis Blair, Obama’s nominee for director of national intelligence, told a Senate confirmation hearing that the Army Field Manual would itself be changed, potentially allowing new forms of harsh interrogation, but that such changes would be kept secret.
Looks like plenty of Obamamites are going to be a bit peeved pretty soon.
See author page
Yes, but not peeved enough to vote for Sarah Palin in 2012.
Prediction: Obama will eventually lock up the approval even of uber-neoconservative William Kristol.
He does that, he’s got his 60% national mandate to do as he pleases, and the GOP is neutered.
– Larry Weisenthal/Huntington Beach, CA
I’m afraid we may have a real “dhimwit” in the White House now…
What is your opinion on that?
i think the judge who refused the motion was right on, he knows what these people are and what they are capable of. obama lacks experience on so many levels that the more oders he signs he will end up screwing some of his groupies. you can’t make everyone happy, but then you also shouldn’t promise to be all things to all people.
luva the scissors, I am wondering if that is insubordination or if this military judge has the ability to counteract an order from the Commander and Chief. Regardless it is very chilling to think a military officer is refusing an order of the President.
I believe it was a request, not an order., blast. Therefore, the judge is not guilty of insubordination. He apparently feels it is very important that the trial continues.
Joanne, a request? I don’t know about that. From the EO it looks pretty clear it is an order.
lol, so now are my comments going through the filter too?
Just in on AP
Obama doesn’t know his own EO he needs the help of his lawyer Greg Craig to explain his EO.
Second, treating terrorism as a “law enforcement” issue led to more terrorism in the 90’s. Clinton just played “kick the can” over the matter leaving Bush to deal with the heavy lifting.
Now, Obama is paying back the “Bar” in letting civil courts handle military trials.
Actually it is breath taking thing that Army Col. James Pohl, has decided to disobey a direct order of the Commander and Chief in now standing down the process for the Executive Review.
Is this a case of gross insubordination?
Pardon me, Larry but *what* 60% mandate would that be? Are you speaking of polls of a thousand or so people around the country? Because the only poll that means anything to me is the election back in Nov. That would be where 47.2% of Americans did NOT vote for Obama.
As to the gelding of the GOP…. they brought it upon themselves by fiscal irresponsibility for a decade. However unlike when they held sway, the Dems had the ability to block and sway a vote or an issue.
We now have a Dem controlled Congress, and a GOP absolutely powerless to stop anything. No blame game in your future, Larry. For the next two years, it’s all on you and your party. So I suspect there will be many more partisan eunuchs in the beltway by next year.
Military judges are not subject to orders from the CIC that countermand US code, blast. No more than Obama can demand the Supremes to ignore US codes. Heaven help us all if a POTUS gets the power to strike US law with the stroke of a pen and an EO.
Per Pohl and his opinion:
Pohl is bound to interpret that law in his status as a military judge. The only one that can strike down the law is an opinon by SCOTUS, and a subsequent rewrite of the law by Congress. In the case of the MCA, neither has happened.
Tho not a lawyer, Pohl, IMHO, is entirely correct in his interpretation and well within his legal rights and jurisdiction.
The big grin I get is the dumbstruck Obama administration, expecting mindless compliance.
ah yes… this know-it-all admin is as well prepared as ever, I see.
BTW, blast… Geoff Morell??? Please tell me you don’t believe a former ABC and White House correspondent who came on board as Gate’s spokesman in June of 2007 has the power to tell a military judge how to interpret the law.
ADDED: The only way the admin or Gates can waylay the judge’s opinion is to withdraw the charges against al-Nashiri… and that’s going to make a lot of USS Cole survivors and families royally PO’d.
I’d say that Pohl’s looking at the US code, and looking at Obama and saying “check! your move”
Ummm… I think there is a HUGE difference between Military Judges and The Supreme Court.
I find it chilling an Army officer refusing a presidential order. Pohl better be “entirely correct”!
You don’t find it chilling that the Executive Order violates the Supreme Law of the Land? How telling.
So are you saying the other two military judges are violating the law by actually following the presidential order?
There is not a “HUGE difference” between the concept of separation of powers, blast. This is where I believe your thinking is flawed. You assume that just because the judge is a member of the military, or works within the military system, that he is not charged with the same sworn oath as federal judges.
I agree with eaglewing. You can’t give the Executive Branch the power to negate US laws with the stroke of a pen, nor dictate to a judge… whether the federal/state system, or the military judicials system… just when and what he is allowed to rule when interpreting the law.
I find it more chilling that you so casually, and without question, wish to annoint the CIC such absolute power over any part of our judicial system.
If Obama wants to stop the arraignment (and it is an arraignment hearing… not a trial) he must do it within the scope of the law. If Pohl were outside his authority, I assure you Obama would probably have the proper authorities there johnny on the spot to remove and arrest the judge. Could the reason that’s not being done is that he’s on shaky legal grounds with his EO? Legal grounds that only one, single military judge had the sense of duty and fortitude to challenge?
You are assuming he is in the right here.
blast, I am assuming a judge – military or judicial – has sworn an oath to uphold to protect the Constitution and honor the laws of the US. An EO is not a law, nor does it have the Constitutional authority to negate a law.
So, in short, yes… I believe Pohl is legally correct in upholding the MCA, staying on path for speedy justice, and ruling against staying the arraignment which delays the justice for the accused…. as opposed to holding him without legal recourse for an additional 120-180 days while they figure out what to do with him.
How would you like to sit in a holding tank while some Governor or POTUS decides whether or not he wants to change the process placed into law by the MCA – a law still in force?
Mata, this process has taken a long time no doubt. I don’t recall you complaining about the speed of the trails before, but less than two weeks into the new presidency it is a vital concern all of a sudden?
On the substance, I would like to know the controlling law in this case. It seems two other judges had no problem following the presidential directive. Chain of command does mean something to those who have served. A request is an order if it comes from above you. So this Colonel better damm well have a tight case as to his authority (or the law requiring him to go forward) to go against the Presidential order…
You misconstrue Pohl’s reasoning for the legal requirement for speedy trial, as per law, as something I care about. Personally, blast, I don’t care if most of these animals rot in place. I don’t hold much patience for those with jihad mentality.
Those thwarting the speedy trial process for years with legal challenges to the MCA and tribunals, spent years whining that we can’t hold these people forever without charging them. Ironically, it’s those same voices that now, passively want to halt the process and let them sit there another four to six months while Obama figures out what he wants to do.
So place the onus of the “not so speedy trial” on those that have spent their entire time doing just that… and now want to extend that delay even further.
Never been thru the court system much, eh blast? A judge is like the ump on a ball field, or ref in the ring. He can make whatever call, and rule however he deems. His ballpark. His game. This does not make Pohl wrong and the others right. Nor does it officially make Pohl right, and the others wrong. It just means they exercised their judicial authority to rule the way they want, and it’s up to the accused to challenge that decision with a higher authority if they don’t like it.
You’d be surprised at how many “wrong” decisions (via precedent law) lower court judges make, and get away with because most don’t have the patience or funds for the appellate process. At some point, a higher judge will have to overturn a wrong call based on precedents because he doesn’t want to create a notable new precedent that conflicts. But if often takes getting a few steps up in the judicial chain to do so. It’s pretty much a “boys club”, figuratively speaking, with many covering each others hides in less than catastrophic decisions. They depend quite heavily on what the public does *not* know about their rights and previous decisions.
No, but as you know I did serve, and that is why I find it very hard to believe that this Colonel is disobeying the order. I find it shocking. Neither of us know the law as it relates to these tribunals, and how much flexibility for delay there may or may not be, but this Colonel better have his shit together and be right or he should be relieved of his duty and charged accordingly.
@blast:
I’m still trying to find the links, but I know that I read in the days following BO’s EO that the delay requests were just that, requests, and that it was within the the judges discretion to grant or deny.
Just as a side question, a military person swears to obey orders as long as they are in compliance with UCMJ correct?
Is the process here, and the corresponding trials, part of the UCMJ?
Or is the MCA separate and independent?
Go to whitehouse.gov for the EO’s. Read them, they sound like orders.
There’s the portion that I was referring to.
So, back to the question.
Is the MCA part and parcel of the UCMJ or separate and independent?
I was referring to news reports on this matter, not the actual EO’s themselves.
Even yesterday’s reporting about the judge who said no, said that he denied BO’s “request”.
I’ll look more later.
Real life beckons at the moment however.
I don’t know for sure, but I think MCA uses parts of the UCMJ.
They can “sound like orders” all they want, blast. You still miss the point of the separation of powers that still exists even with military tribunals. Untill you get that concept, you are forever going to be lost in assuming a CIC can order a judge to do anything he wants INRE his hearings and decisions.
What the CIC can do is withdraw the charges, and remove the case completely from the court.
INRE the UMJC… (2008 regs here)… the POTUS’s use of military commissions must also be compliant with the American common law of war,… and that includes both the DTA and MCA. So they are not separate entities that the UMJC can ignore.
The rules of UMJC and be changed via EO… but hitting the “pause” button is not a change to the UMJC procedures. And to do so is out of compliance with the supposed speedy trial bit (RCM 707). The way the POTUS is qualified to affect the disposition of charges is found in Rule 401 (pg 83 of the 980 pg rules)… by dismissing them.
Obama doesn’t want to dismiss, and he doesn’t want to try. He’s saying keep ’em locked up for 4-6 months more while I figure out what I want to do.
I understand the separation of powers, if you know of the specific portion of law that this Colonel is using to countermand a Presidential Order, let me know. I have stated several times above that it is chilling and the colonel better have his shit together or else.
As Aye mentioned above, the “order” was to the prosecutors, to *request* a freeze on the process. The prosecutors are arguing that it *should* be up to the POTUS to determine whether or not to continue the Bush policies for the process. The order was not directed to the military judges.
To add to the irony, it is the same prosecutors that argued Bush had no authority to implement the military tribunals (Hamdan), yet now want to use that same authority to un’implement the same.
For those in the US federal courts at the moment, per a Jan 21st Reuters article:
So who does Colonel Pohl answer to?
Yesterday’s NYTimes:
Isn’t Nashiri one of the three our government’s acknowledged to have waterboarded?
Trust the idiots at the NYTs to call dismissal of charges “reversing” Pohl’s decision… LOL. What it actually would be is letting the scum bag get off scott free without trial. And Obama would be insane to cross the USS Cole families, survivors and military as a whole by doing that.
It’s what happens when you don’t think things thru, and rush into a photo op.
ADDED: Thanks for the link to that discussion, Missy.
@MataHarley:
They are also discussing this at the Belmont Club, Mata, this is comment #6 by Jim. I know, I know, what a source. His comment confirms yours regarding the speedy trial(it’s already in motion) and withdrawing charges.
From Jim at Belmont:
“This was not a defendant (accused in this context) request rather it was a government request. Under the MCA, there is a speedy trial clock that starts to toll when the charges are referred to trial by the convening authority. The government then has 30 days to arraign the accused. Another clock also starts to run when charges are referred. The accused must be brought to trial within 120 days. Obviously if the accused requests a delay then the clock stops running until the delay is over at which time it picks up where it left off.
Secretary Gates did take steps sufficient to ensure…Military Commissions … are halted. The fact is that even though he is a military officer, a military judge doesn’t have to follow an order that he believes contravenes the law in some way.
The judge is well within his rights to deny the continuance request from the government. In his eyes there is no difference between the Obama administration and the Bush administration – same government.
The MCA states that the gov’t has to arraign Nashiri within 30 days of the charges being referred to trial. That is a speedy trial right that Congress gave an accused at a Military Commission. The gov’t has to then bring Nashiri to a full trial within 120 days after charges being referred. This rule of course allows for continuances being granted for a good reason. The judge in this case didn’t think that President Obama wanting to review Military Commissions was good enough. Military Judges do this all the time in Courts-Martial.
In a court-martial when a military judge doesn’t allow the prosecution to enter something into evidence the military judge is effectively telling the President no. There is no difference here.
The government now has a choice – withdraw the charges and bring them later in federal court, court-martial, military commission or dispose of the case in some other way determined by the administration.”
http://pajamasmedia.com/richardfernandez/2009/01/29/us-versus-us/
Ummm… so let me get this straight. A colonel “didn’t think” that Presidents request/order was “good enough? And that Military Judges do that all the time?
Can you site other examples of when Military Judges denied a presidential such as this?
I tend to think Wordsmith’s NYT post is what is happening…
If that is the case, is that acceptable behavior of a military officer to dealing with the Commander and Chief? They just want to complicate the Obama administration’s efforts? Don’t we have civilian control of our government?????
@blast:
No, it wasn’t good enough to delay the case that is already set in motion, reason being are the time constraints and the following comment you felt wasn’t good enough to focus on:
“The judge is well within his rights to deny the continuance request from the government. In his eyes there is no difference between the Obama administration and the Bush administration – same government.”
Now for this silliness:
“If that is the case, is that acceptable behavior of a military officer to dealing with the Commander and Chief? They just want to complicate the Obama administration’s efforts? Don’t we have civilian control of our government?????”
“some******* critics****** of the military commission system said.
Are you judging Colonel Pohl based on an *****assumption/accusation**** by a military commission critic?
Adding: I would think you would be more concerned with the good Colonel’s boss letting this killer off the hook.
Good lord, blast… you’re getting to be borderline conspiratorial on this and your stubborness. This is a matter of how one judge interpreted UCMJ and MCA… a law STILL on the US books. Not some political ploy and sign of rebellion. Even SCOTUS judges rarely have consensus on legal interpretations.
Were this a clear cut case of insubordination, it would not have happened, or Pohl would be removed and facing a court martial himself. That isn’t happening… Notice that by the judge exercising his ability to grant or deny, the Obama admin is back in ponder stage to figure out a way to force a judge to ignore US law and do it their way.
This bothers you not one bit??
You are using commenter Jim’s word – “think” to exaggerate this, and not the cogent reasoning of Pohl himself…. see his quotes above. Foul ball there, guy. The judge is within his full rights to weight the prosecutor’s request against the laws dictating the process. And he stated his reasoning for doing so quite adeptly. Use his words, not a commenters, when you determine his motives.
You will also see via the link I provided above it was well advertised via WaPo that the request was given to the prosecutors to request of the judges, and that these judges OR prosecutors were under no legal obligation to request OR grant such a request.
Even the civilian federal judges only granted a two week delay… not a 120 day or more delay. Why aren’t you hopping mad about that? Or do you actually see the separation of powers there, and not in the military judicial system?
This is all a bunch of hoopla in your mind. And much as I’d like to play more, I’ve spoken my peace on my take on this… backed up by some pretty reliable reports and rules of law. As I said, that Obama is asking prosecutors to argue that the judge sidestep US law, created by Congress, doesn’t bother you one bit is just downright scary.
I’m done with this cyber debate. Going nowhere with you on facts.
@MataHarley:
Mata,
Thanks for the research and linkage.
I knew I had seen it somewhere but didn’t have the time to find it.
Darn real life keeps interfering today.
I called the Military Commission today and asked if the Judges actions were just a symbolic stand, and of no real value. I wanted to know and still do how Obama or any president can just stop the Commissions which were voted on by both parties, and approved of.
The answer I got back was that there is much doubt as to if is his actions will do any good. I hope they do. I also called Senator Cornyn and asked him the same questions or his staff.
Something tells me that all this is political. Dah! That the one judge who believes the trail should go foward and that the law should be recognized and upheld, against the judges who probably side with Obama, and want the law disregarded. Like Susan Crawford who used her position to advance the agenda of the liberals, and the ACLU.
@Gary Swenchonis:
Mr. Swenchonis,
I just wanted to say to you how sorry I am for all that your family, and the other families, have been through on this.
The horror of losing a loved one in such a fashion and the ensuing mistreatment by our government is just a terrible, unspeakable combination of injustice.
I know that nothing will ever bring your son back. I know that your lives will always have a void that cannot be filled, a wound that will not heal.
I do hope, however, that knowing that there are those out here who think of you and root for you and pray for you will help in some small way.
I have followed the story of the USS Cole and her crew since the day she was attacked and I sincerely hope that justice, while perhaps delayed, will in no way be justice denied.
God Speed to you sir, and to the others who share your journey.
Aye
To AYE C.
Thank-you sir for the kind words and support. Before it was just the Cole terroristsgetting away free for the Cole attack that was ignored for years by two administrations. I am not knocking Bush. At least he tried to do something by setting up the M/C., and the war after 9/11. I did disagree with his decision not to invade Yemen for many reasons first. I often wonder if he regrets it too. Since President Saleh broke every promise he made to Bush, and Clinton before that. But now it looks like a real possibility that even the 9/11 victims may be cheated out of justice as well. Its as if we have learned nothing as nation. And are headed back down the same road that we took to get where we are now in regards to Gimto and the terrorists and the laws that now protect us.