Double Binds

By Carol Gee

The question of what to do about the detention facility at Guantanamo Bay has been on the minds of both the previous and current administrations. Shortly after being sworn in President Obama instructed military prosecutors to ask that the proceedings be delayed in order that a full review could take place. This from TPM Muckraker, (2/6/09) explains the most recent events: "Thanks To Obama's Order, Military Drops Charges In Gitmo Trial." It settles the question of whether military tribunals will be the justice method of the Obama administration. At the same time the 9/11 families were not happy about it when they recently met with the President. To quote:

All but one judge complied with the prosecutors' requests. That one, Army Colonel Jame Pohl, declined to do so.

But now, the Associated Press reports, Susan Crawford, the top legal authority for Guantanamo's proceedings, has decided to drop the charges in the case over which Pohl is presiding, thereby bringing the case into compliance with Obama's order.

Shedding additional light on these dilemmas for the administration, are columns at Salon.com, by Glenn Greenwald. In his 2/6/09 piece, "Counter-terrorism logic" (Update section), Glenn debunks the claims that 61 released detainees have returned to the battlefield. In an earlier (2/4/09) column entitled "Various Items," several pertain to today's subject here: Item 3 -- regarding the Obama administration's position on rendition of detainees, Item 5 -- regarding the US Government erecting a wall of secrecy around what it has done to torture detainees, and demands that "other countries [the UK] do the same, upon threat of being punished," and Item 6 regarding an ACLU letter to Secretary of State Clinton regarding the US/UK matter in Item 5 above. (See ACLU Blog for more on the Gitmo Truth Out)

Another illustration of the difficulty in which the administration finds itself is the quandry of a public opposition to torture and secret detentions, colliding with a legal requirement to defend former government employees under certain conditions. John Yoo, Donald Rumsfeld, Paul Wolfowitz and John Ascroft will get help in the Jose Padilla lawsuits over his alleged torture. The story is from Wired - Threat level (2/4/09): "Obama: Reject Torture, defend Torturers." To quote:

The new U.S. president has renounced those Bush administration practices, but government lawyers continue to defend the previous administration's top officials accused of authorizing and carrying out those policies.

. . . Chief among those enjoying a taxpayer-funded defense is John Yoo . . . As a Bush administration lawyer, Yoo wrote the so-called torture memos the previous administration invoked to rationalize torture of enemy combatants.

. . . in federal court in San Francisco, in a lawsuit (.pdf) brought by Jose Padilla. The one-time alleged "dirty bomber," Padilla claims Yoo's internal legal opinions paved the way for his harsh interrogation while he was secretly held without charges at a Navy brig in South Carolina.

Government lawyers are also defending former Secretary of Defense Donald Rumsfeld, former Deputy Secretary of Defense Paul Wolfowitz, former Attorney General John Ashcroft and other Bush administration officials in a second lawsuit by Padilla accusing (.pdf) them of violating his constitutional rights.

Double binds, where we are damned if we do and damned if we don't, appear to be a fact of life for the new administration. That is the inevitable outcome of the Bush administration's failure to adhere to the rule of law. The future will not be easy, but the Constitution stands as bedrock to help solve these double-bound legal dilemmas.

See also a collaborative post today about this same subject called, "Bush Leftovers For Sunday Dinner" at my brand new blog, Behind the Links.

(Cross-posted at South by Southwest.)