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Late last Friday, in a development that hasn't gotten enough attention, a judge appointed by George W. Bush breathed a big breath of life into a lawsuit that seeks to hold John Yoo accountable for the abuse suffered by Jose Padilla, one of the Bush administration's most notoriously mistreated one-time enemy combatants. I've written about Padilla's suit against Yoo for Slate. When it was filed, Padilla's lawyers were accused of abusing the legal system by going after Yoo, a sole former Bush lawyer who is on the faculty of Berkeley's law school. (Disclosure: Padillla's counsel include Jonathan Freiman, who is a friend of mine, and students in a Yale Law School clinic, where I'm a fellow.) Let's just say that last week's ruling by Judge Jeffrey White is a major victory for Padilla and sweet vindication for the lawyers who represent him. The judge rejected all but one of Yoo's claims of immunity and said that the suit should go forward. His opinion begins by framing the case in terms of the tension "between the requirements of war and the defense of the very freedoms that war seeks to protect." And then he rejects the government's claim that national security necessarily trumps Padilla's claims. This isn't just a repudiation of the past stance of the Bush administration. It also turns aside Obama's lawyers, who are fighting hard against Padilla.
What should happen next is discovery—the gathering of evidence to prove Padilla's claim. If Padilla could actually get access to still-secret memos and other documents relevant to his hellish stay in a military brig, this suit could yield more truth-telling about the Bush admininstration decisions that led to torture. (It already has: three of the Department of Justice memos on torture that the Obama administration released in April were made public because of the suit.)
What's likely to come first, however, are appeals. Yoo will probably appeal the ruling that he's not immune to suit. The Obama administration could appeal by asserting, yet again, the blanket state secrets defense. Let's hope, though, that Padilla gets to start pulling the skeletons out of the closet that has Yoo's name on it.
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Late last Friday, in a development that hasn't gotten enough attention, a judge appointed by George W. Bush breathed a big breath of life into a lawsuit that seeks to hold John Yoo accountable for the abuse suffered by Jose Padilla, one of the Bush administration's most notoriously mistreated one-time enemy combatants. I've written about Padilla's suit against Yoo for Slate. When it was filed, Padilla's lawyers were accused of abusing the legal system by going after Yoo, a sole former Bush lawyer who is on the faculty of Berkeley's law school. (Disclosure: Padillla's counsel include Jonathan Freiman, who is a friend of mine, and students in a Yale Law School clinic, where I'm a fellow.) Let's just say that last week's ruling by Judge Jeffrey White is a major victory for Padilla and sweet vindication for the lawyers who represent him. The judge rejected all but one of Yoo's claims of immunity and said that the suit should go forward. His opinion begins by framing the case in terms of the tension "between the requirements of war and the defense of the very freedoms that war seeks to protect." And then he rejects the government's claim that national security necessarily trumps Padilla's claims. This isn't just a repudiation of the past stance of the Bush administration. It also turns aside Obama's lawyers, who are fighting hard against Padilla.
What should happen next is discovery—the gathering of evidence to prove Padilla's claim. If Padilla could actually get access to still-secret memos and other documents relevant to his hellish stay in a military brig, this suit could yield more truth-telling about the Bush admininstration decisions that led to torture. (It already has: three of the Department of Justice memos on torture that the Obama administration released in April were made public because of the suit.)
What's likely to come first, however, are appeals. Yoo will probably appeal the ruling that he's not immune to suit. The Obama administration could appeal by asserting, yet again, the blanket state secrets defense. Let's hope, though, that Padilla gets to start pulling the skeletons out of the closet that has Yoo's name on it.
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Great job, Obama! You've finally succeeded in getting somebody else to take some of those Guantanamo detainees off your hands. Your masterful diplomacy, although strangely ignored by more than 100 of our petitioned allies, has swayed the tiny island country of Palau to generously take a small group of the least dangerous detainees. Perhaps also helpful was the mere fee of $200 million we're paying them, which—as the Wall Street Journal points out—is a practical $10,000 for every citizen of Palau. On the heels of that good news comes yet more: Saudi Arabia is willing to take almost 100 of the most dangerous detainees. Details of that negotiation still to come.
I can't help but wonder if the same protesters who raged over America's abuse of detainees in Guantanamo will express the same level of outrage for the inevitably much worse treatment to come from Saudi Prisons. As one distressed Yemini family member of a detainee worried, it is unlikely the prisoners will have access to the American judicial system (let alone the American media) in Saudi Arabia. As Haitham Al-Marwalah, 16, brother of detainee Mohammed al-Marwalah, was quoted in the Yemin Times, "... we think Saudi Arabia is not fair."
But who ever said being fair had anything to do with it? Throughout the Guantanamo saga, I've struggled to understand why it's worth closing one of the most scrutinized and secure prisons in the world—especially in the aftermath of such intense public scrutiny. Symbolically it makes sense for Obama (I mean, Guantanamo is probably the only prison in the world that most people know by name), since once he closes it he's "solved the problem" simply by removing it from public radar. But in terms of rationality and national security, it makes just about as much sense as shutting a school because of inappropriate behavior from a teacher. Fire the teacher—definitely. But close the school?
Being president is about making hard decisions that are best for the country—rather than what's best for your personal image. I'm trying to be optimistic that Obama's Guantanamo grandstanding isn't indicitive of what motivates all his decision-making, but it's not the easiest position to hold after watching him be willing to gamble away taxpayer dollars, detainee welfare, and national security interests this time around.
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If the Daily Telegraph is right that the unreleased detainee-abuse photos include graphic images of rape, Obama must have been lying when he said the photos are “not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib.” For all the pain of those earlier images, what they depicted were not generally criminal acts in the same way that rape is. They showed violation, humiliation, the horrific power differential between prisoners and their jailors—war crimes, to be sure—but they tended to document the effects and aftermath of violence more than its actual commission. Gourevitch, who writes that he has seen “many—if not most” of the unreleased photos, also gives no indication that they depict sex crimes.
I wouldn’t put it past Obama—or any president—to lie about the content of images that he thinks the public will never see. But what about these photos, which may well be released soon if judges continue to rule as they have recently in favor of the ACLU’s Freedom of Information Act request? Wouldn’t that be a big risk for the president to undertake? Is it possible that he hasn’t seen the photos of rape, but is referring only to the 40-some images that are part of this particular lawsuit? (Activists say there are as many as 2,000 others that we haven’t yet seen—maybe those are the ones depicting sexual violence.) And does Gourevitch think that if indeed these pictures document rape, that doesn’t even merit a mention in an article arguing against their release? Maybe this would make no difference to his larger point, but it makes a difference to me as a reader to at least acknowledge this content, which as Susannah points out, may complicate matters for some.
Yet even if these unreleased images do depict rape, I still agree with Major General Antonio Taguba's position in the Telegraph piece that they shouldn’t be published. If we have in written form the evidence needed to frame a criminal prosecution, why do we need, as a society, to look at photographs that would further violate the victims by their release? Article 13 of the Geneva Convention notes that prisoners of war must be protected not just against violence and intimidation, but “public curiosity.” When does our need to see the vivid imaes of abuse trump our effort to enforce the very codes whose violation the photos document? In Regarding the Pain of Others, Susan Sontag rightly notes that “most depictions of tormented, mutilated bodies do arouse a prurient interest” and “all images that display the violation of an attractive body are, to a certain degree, pornographic.” We have already seen the pornography of this war. If we don’t know by now that detainee abuse in all its forms is real and appalling and must be prosecuted to the fullest extent of the law, more pictures won’t convince us.
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The Daily Telegraph reports unreleased Abu Ghraib photographs include sexual torture and "rape." Does that have any bearing on the debate over whether we should be allowed to see the photographs? According to the story, the pictures include an American soldier raping a female prisoner and a "male translator raping a male detainee." Other photos include prisoners being sexually violated with a "truncheon, wire and a phosphorescent tube." Yet another is of a female prisoner being forcibly stripped to expose her breasts. Meanwhile, Obama has reversed his earlier stance and refused to release the photos, a position that has generated outcry and support.
According to a recent New York Times op-ed by Philip Gourevitch, who co-wrote The Ballad of Abu Ghraib with Standard Operating Procedure director Errol Morris, "Releasing additional photographs would not be telling us anything that we don’t already know." (Vanessa weighs in with her take on the op-ed here.) The Telegraph report seems to suggest otherwise—as this set of photos takes what we have seen to a whole new level. "Crime-scene photographs," Gourevitch writes, "for all their power to reveal, can also serve as a distraction, even a deterrent, from precise understanding of the events they depict." Ultimately, his point is that it's the story behind the story depicted in the photographs that matters. It's the men who led our country to this state that we must keep in our sights if we are to avoid repeating the war crimes of our recent past.
While Gourevitch is generally correct, in this specific case he is wholly wrong. What makes this new photographic revelation tricky, and is what, I suspect, led to Obama's some say "stunning" reversal, is that these photographs, for all intents and purposes, are pornographic. They are hardcore, unblinking, unphotoshopped depictions of Americans raping and sexually violating the "enemy" in the context of war. Because they are sexually graphic, it's their reception that is the potentially problematic part. Rightly or wrongly, in all likelihood, these photographs will titillate. All the P.C. politics of the mind cannot override the un-P.C. desires of the libido. But it is in spite of this fact that these photographs must be released. These days, we speak of "the pornography of war." This is that writ real. And we must bear witness to it in order to comprehend it, in all its horrifying reality. After all, we paid for it.
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Philip Gourevitch’s piece in Sunday’s New York Times adds another compelling argument to the ones I’ve been making recently about why releasing more photos of detainee abuse in Iraq and Afghanistan is a bad idea. Obama first supported the release of the latest batch of photos but subsequently changed his mind, saying that the pictures in question are associated with “closed investigations” in which the perpetrators have already been identified and sanctioned, and that they “would not add any additional benefit” to our understanding of detainee treatment in Iraq and Afghanistan.
Gourevitch, who has written a book about the soldiers who took many of the photos at Abu Ghraib, rightly notes that releasing more pictures “would not be telling us anything we don’t already know.” Indeed, anyone who hasn’t already taken the images that are by now engraved in our national consciousness and magnified their severity by 10 or 100 times has chosen not to see, not to know. The hooded figure standing on a box, arms outstretched and dangling wires in a sick fantasy of imminent electrocution, the pyramids of naked men made to kneel on each other’s backs, the prisoner tormented by a snarling dog, Lynndie England and Charles Graner and all the others with their thumbs up and goofy, unfathomable smiles on their faces—these are neither the whole story nor, very likely, the worst of it. But no matter how many pictures come out, much will have happened that we will never see. This is not just because, as Gourevitch writes, photos “can’t show us that the real bad apples were at the top of the civilian chain of command in Washington,” but because even though the digital camera is a valued companion of soldiers everywhere, the crime scene in this case is too vast to be documented. The potential for detainee abuse exists not just within the known detention facilities in the two main theaters of what used to be called the war on terror but in an endless number of in-between places where detentions occur secretly and where detainees have been reduced to the status of ghosts. We must use our imaginations here—not just to fill in the blanks about high-level accountability in the Abu Ghraib mess and detainee deaths in Afghanistan but to develop a mature understanding of how this war has been waged under Bush-Cheney and how complex it will now be to win or even to end.
As a reporter, I favor openness as a rule. I think the release of the first round of Abu Ghraib pictures was necessary to shake America out of its torpor and blind acceptance of the Bush administration argument that any response was justified by the viciousness of our enemy, and I’m grateful for the investigations and soul searching those photos spawned. I don’t share Obama’s view that protecting American troops from further harm on the battlefield is the most important reason for withholding these additional photos. After all, soldiers already face extreme danger in Iraq and Afghanistan, and doing so is part of their job. No one who likes Americans today is going to have his mind changed by a new photo of detainee abuse if the previously published pictures didn’t sway him.
I'm much more concerned about the people in war zones who don’t carry guns and who are being kidnapped and killed with frightening regularity. If more pictures were released now, the greatest risk would be to aid workers and journalists, those of us still clinging to the last scraps of that old concept of neutrality as we venture unarmed into remote areas to find out how many people were really killed in that bombing raid or how to get food to villages withered by drought. Today’s insurgents don’t care what your intentions are or that you profoundly disagree with the actions of your democratically elected government. All they care about is the insignia on the cover of your passport. Some will say this is self-serving of me. Perhaps. But just as the costs of maintaining the detention center at Guanatamo Bay outweigh its benefits, so our desire to see—and display to the world—more images of America behaving badly should give way to our need for a better understanding of what we’re up against. Already, many parts of Afghanistan and Pakistan are effectively off limits to reporters and aid workers. Releasing more pictures will only make those areas less accessible, further endangering civilians and giving the bad guys and the thugs they employ more cover to attack us, to lump us all together with the Lynndie Englands and Charles Graners, the Dick Cheneys and George W. Bushes. Now is not the time to indulge our collective guilt or further punish soldiers while allowing the leaders who gave the orders to go free. It’s time to show that we can be good again. We need to preserve some ground for engagement with the people we’re fighting among, some sense of the possibility of change, of a better way forward for them and for us. The more people without guns who can get out into these places and make a persuasive, personal case that there’s another side of America, the better.
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Philip Gourevitch’s piece in Sunday’s New York Times adds another compelling argument to the ones I’ve been making recently about why releasing more photos of detainee abuse in Iraq and Afghanistan is a bad idea. Obama first supported the release of the latest batch of photos but subsequently changed his mind, saying that the pictures in question are associated with “closed investigations” in which the perpetrators have already been identified and sanctioned, and that they “would not add any additional benefit” to our understanding of detainee treatment in Iraq and Afghanistan.
Gourevitch, who has written a book about the soldiers who took many of the photos at Abu Ghraib, rightly notes that releasing more pictures “would not be telling us anything we don’t already know.” Indeed, anyone who hasn’t already taken the images that are by now engraved in our national consciousness and magnified their severity by 10 or 100 times has chosen not to see, not to know. The hooded figure standing on a box, arms outstretched and dangling wires in a sick fantasy of imminent electrocution, the pyramids of naked men made to kneel on each other’s backs, the prisoner tormented by a snarling dog, Lynndie England and Charles Graner and all the others with their thumbs up and goofy, unfathomable smiles on their faces—these are neither the whole story nor, very likely, the worst of it. But no matter how many pictures come out, much will have happened that we will never see. This is not just because, as Gourevitch writes, photos “can’t show us that the real bad apples were at the top of the civilian chain of command in Washington,” but because even though the digital camera is a valued companion of soldiers everywhere, the crime scene in this case is too vast to be documented. The potential for detainee abuse exists not just within the known detention facilities in the two main theaters of what used to be called the war on terror but in an endless number of in-between places where detentions occur secretly and where detainees have been reduced to the status of ghosts. We must use our imaginations here—not just to fill in the blanks about high-level accountability in the Abu Ghraib mess and detainee deaths in Afghanistan but to develop a mature understanding of how this war has been waged under Bush-Cheney and how complex it will now be to win or even to end.
As a reporter, I favor openness as a rule. I think the release of the first round of Abu Ghraib pictures was necessary to shake America out of its torpor and blind acceptance of the Bush administration argument that any response was justified by the viciousness of our enemy, and I’m grateful for the investigations and soul searching those photos spawned. I don’t share Obama’s view that protecting American troops from further harm on the battlefield is the most important reason for withholding these additional photos. After all, soldiers already face extreme danger in Iraq and Afghanistan, and doing so is part of their job. No one who likes Americans today is going to have his mind changed by a new photo of detainee abuse if the previously published pictures didn’t sway him.
I'm much more concerned about the people in war zones who don’t carry guns and who are being kidnapped and killed with frightening regularity. If more pictures were released now, the greatest risk would be to aid workers and journalists, those of us still clinging to the last scraps of that old concept of neutrality as we venture unarmed into remote areas to find out how many people were really killed in that bombing raid or how to get food to villages withered by drought. Today’s insurgents don’t care what your intentions are or that you profoundly disagree with the actions of your democratically elected government. All they care about is the insignia on the cover of your passport. Some will say this is self-serving of me. Perhaps. But just as the costs of maintaining the detention center at Guanatamo Bay outweigh its benefits, so our desire to see—and display to the world—more images of America behaving badly should give way to our need for a better understanding of what we’re up against. Already, many parts of Afghanistan and Pakistan are effectively off limits to reporters and aid workers. Releasing more pictures will only make those areas less accessible, further endangering civilians and giving the bad guys and the thugs they employ more cover to attack us, to lump us all together with the Lynndie Englands and Charles Graners, the Dick Cheneys and George W. Bushes. Now is not the time to indulge our collective guilt or further punish soldiers while allowing the leaders who gave the orders to go free. It’s time to show that we can be good again. We need to preserve some ground for engagement with the people we’re fighting among, some sense of the possibility of change, of a better way forward for them and for us. The more people without guns who can get out into these places and make a persuasive, personal case that there’s another side of America, the better.
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As Slate columnist John Dickerson pointed out late last week, by saying that the CIA "misleads us all the time," Nancy Pelosi "put the spotlight on herself and has given weakened Republicans a fight they can enjoy, engage in, and possibly win." Newt Gingrich took to The Daily Show last night to promote his new book, 5 Principles for a Successful Life, but before getting into the heart of his shill, he called for Pelosi to step down from her post as speaker of the house:
I don’t care if she stays in Congress. To be speaker of the house means you’re third in line for president, it means you have access to all the national security, it means you have a responsibility for the safety of the country. Now a person who would lie about everybody in the intelligence community in the middle of a war is utterly irrational. Now she either has to prove her allegation, or I think she’s done a huge disservice. Why would anyone from the CIA ever want to brief the speaker of the house?
Clip below.
The Daily Show With Jon Stewart
M - Th 11p / 10c
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As Slate columnist John Dickerson pointed out late last week, by saying that the CIA "misleads us all the time," Nancy Pelosi "put the spotlight on herself and has given weakened Republicans a fight they can enjoy, engage in, and possibly win." Newt Gingrich took to The Daily Show last night to promote his new book, 5 Principles for a Successful Life, but before getting into the heart of his shill, he called for Pelosi to step down from her post as speaker of the house:
I don’t care if she stays in Congress. To be speaker of the house means you’re third in line for president, it means you have access to all the national security, it means you have a responsibility for the safety of the country. Now a person who would lie about everybody in the intelligence community in the middle of a war is utterly irrational. Now she either has to prove her allegation, or I think she’s done a huge disservice. Why would anyone from the CIA ever want to brief the speaker of the house?
Clip below.
The Daily Show With Jon Stewart
M - Th 11p / 10c
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In the heady afterglow of Obama's inauguration, I accepted a bet from Ann Althouse. She bet that the president, in the end, would not fulfill his promise to close Guantanamo within a year, by next January. Testing my hope that Obama could be counted on, I bet that he'd come through. Now I'd say Ann is looking more prescient than I am.
How is Obama going to close Guantanamo in eight months when his lawyers just asked for a four-month extension (the second one) in the legal proceedings against the detainees? It's hard to square the promise with the developing facts. Nor is it a happy sign that the president is decorating Bush's military tribunals with more detainee rights rather than swearing them off in favor of federal court. As a New York Times editorial argued on Sunday, tribunals have a place, but it's for trying prisoners of war captured on the battlefield, not anyone we picked up after 9/11 who we don't know what to do with, which describes the detainees.
Congress refused to give Obama the $80 billion he asked for to relocate the Gitmo detainees because he has laid out no plan for which of them are going where. It's time to make that plan. Try as few of the detainees as possible in the Bush-Obama tribunals and get the rest either into the federal criminal system or on a plane home, like the Supreme Court litigant Lakhdar Boumediene, who flew to France last week. When you set your own deadline, it matters much more that you meet it. No one forced Obama to promise, by executive order, to close Guantanamo by next January. But he did, and he got a lot of mileage out of it. Don't blow past this one, Mr. President.
