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Yoo, Latif, and the Rise of Secret Justice

By Scott Horton

One of the lasting challenges to America’s federal judiciary will be addressing American complicity in the tortures and disappearances of the past ten years. Two recent appeals-court decisions show us how judicial panels are tackling these issues: by shielding federal officials and their contractors from liability, and even by glorifying the fruits of their dark arts. In the process, legal prohibitions on torture are being destroyed through secrecy and legal sleight of hand, and our justice system is being distorted and undermined.

Last week, the Ninth Circuit reversed a district-court decision allowing a suit against torture-memo author John Yoo to go forward. The suit had been brought on behalf of José Padilla by his mother, who argued that Padilla was tortured while in U.S. custody as a result of Yoo’s advice—a claim that seems pretty much unassailable, and that had to be accepted as true for purposes of the preliminary rulings. In a decision that has left international-law scholars dumbstruck, the Ninth Circuit granted Yoo immunity, concluding that the law surrounding torture was so muddled when he dispensed his advice that he should be given the benefit of the doubt. The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture—rather it was “cruel, inhuman and degrading treatment.”

Hovering in the background of the Ninth Circuit’s opinion is a troubling fact: John Yoo had a co-author when he crafted his torture memoranda, Jay Bybee. And Bybee is now a judge on the Ninth Circuit. Had the court handed down any other ruling, it would have been exposing one of its own. The court’s twisted reasoning and distortions of legal precedent otherwise make very little sense. Indeed, the Ninth Circuit judges seemed to be uncomfortable with torture, issuing an opinion that was comparable to a surgical excision: do what is essential to shelter Yoo and Bybee, and not an iota more.

The D.C. Circuit, conversely, has developed a real hankering for torture. Exhibit A in its judicial immorality tale is the astonishing 2–1 decision handed down in October in the Latif case, in which two movement-conservative judges overruled a district court that had concluded that Latif—a thirty-six-year-old Yemeni who has spent the past ten years of his life in prison in Guantánamo without being charged and with only vague suspicions connecting him to terrorist groups—should be released because the record did not contain sufficient evidence to warrant a life sentence in the absence of charges. Judge Janice Rogers Brown, a George W. Bush appointee, wrote that the usual presumptions had to be reversed in cases involving Guantánamo detainees: the government’s secret conclusions had to be presumed correct unless they were contradicted by compelling evidence to the contrary. In Brown’s perspective, the analytical report on Latif prepared by CIA officers—who were under immense pressure to justify detentions even when the evidence plainly indicated very little to no basis for them, as Glenn Carle and other CIA case officers have openly acknowledged—was entitled to a “presumption of regularity.” Because key parts of this report were classified, it was not entirely accessible by the petitioner, denying him the ability to effectively rebut it.

remainder: http://www.harpers.org/archive/2012/05/hbc-90008612

Every Nation for Itself: Six Questions for Ian Bremmer ( Harper's - Scott Horton )

The world is quickly being reshaped, writes political economist Ian Bremmer. America established itself as the paramount power following the collapse of Communism, but the emerging system is one in which no nation or group of nations stands out as its leader. What will this mean for the global economy and for conflict in the near future? In Every Nation for Itself, Bremmer looks at the world forming now and sees glimmers of hope, but a somber future. I put six questions to him about his new book.

1. We have the G–7, the G–8, and the G–20—explain how you came up with the idea of the G-Zero?

Simply put, the G–7 and the G–20 no longer reflect the world we live in—each for their own reasons. After the financial crisis of 2008, it was clear that the G–7 was too narrow to solve the problem—the United States and its allies alone could not stem a crisis that was impacting so much of the world. The result was an empowered G–20, in which a lot more players with a lot more voices briefly came together to provide global leadership. This moment of coordination proved to be fleeting—the G–20’s component nations only worked together as long as there was a looming crisis that affected them to a similar degree, and for a similar duration.

When the dust settled, we saw the fundamental shift occurring today: the West is riddled with debt and less capable of providing global leadership, while emerging markets like China have proven resilient and increasingly important on a global scale. Yet those markets remain unwilling to set an international agenda as they focus, first and foremost, on the domestic growing pains that come with development.

So if the G–7 can function but doesn’t reflect the global balance of power, and the G–20 is representative but cannot function, what do we have left? I call it the G–Zero: a volatile period during which no country or group of countries can set the global agenda and solve the world’s most pressing problems. We need answers on global concerns like climate change, the availability of food and water, nuclear proliferation, and international security. In the G–Zero, we’re not going to get them.

in full: http://www.harpers.org/archive/2012/05/hbc-90008577

Army closes investigation into the killing of 21 members of the a-Samuni family in Gaza

1 May 2012

The MAG (Military Advocate's General) Corps informed B'Tselem today that it has closed the Military Police investigation file in the complaint submitted by B'Tselem into the killing of 21 members of the a-Samuni family in the Gaza Strip. The file was closed without taking any measures against those responsible. In a letter sent to B'Tselem and the Palestinian Center for Human Rights in Gaza (PCHR) that filed a complaint into the matter as well, major Dorit Tuval, from the MAG Corps for operational matters wrote that the investigation completely disproved any claim about deliberate harm to civilians, as well as haste and recklessness regarding possible harm to civilians, or criminal negligence. The military's response does not detail the findings of the investigation, nor does it provide the reasons behind the decision to close the file or any new information about the circumstances.

In response, Adv. Yael Stein, B'Tselem's head of research, said: it is unacceptable that no one is found responsible for an action of the army that led to the killing of 21 uninvolved civilians, inside the building they entered under soldiers' orders, even if this was not done deliberately. The way the army has exempted itself of responsibility for this event, even if only to acknowledge its severity and clarify its circumstances, is intolerable. Shirking the responsibility for the deaths of hundreds of other civilians and the immense damage caused by operation Cast Lead demonstrates yet again the need for an Israeli investigation mechanism that is external to the army.

in full: http://www.btselem.org/press_releases/20120501_samuni_investigation_closed
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