Obama can repair U.S. policies and image

The American Security Project, a D.C. based national security research organization, held a telephone conference to discuss the foreign policy decisions facing incoming Obama administration.

“It seems clear to me that the last eight years have been an utter disaster with respect to the U.S. position on international law and even much of domestic constitutional law dealing with foreign relations,” Anthony Clark Arend, Professor of Government and Foreign Service at Georgetown University and Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

“I have never seen the United States at such a low position with regard to its lack of leadership in international law and I’ve thought back and tried to find an administration where that was the case and I really haven’t seen it.”

Arend suggested that there are several steps President-elect Obama can take to improve the United States’ international standing. Including closing the Guantanamo Bay prison facility and issuing an executive order that would hold the intelligence community to the same interrogation standards found in the U.S. Army Field Manual.

There are other members of the Obama administration who will have sway in improving the United States’ foreign policy stance. Under the Bush administration there were various memos sent to the Department of Justice relating to torture and detainee treatment. “Whoever comes in as attorney general will need to immediately withdraw those memos,” said Arend who also recommended reforming how detainees are put to tried by repealing the American Commissions Act.

The future of American foreign policy needs to be discussed in depth, said Arend. This would take the form of creating a special bipartisan task force and may even lead to the creation of a new Geneva convention more in line with 21st century concerns.

Damon A. Terrill, former Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State, who also spoke during the conference, said that following the departure of Bush, the U.S. has an obligation to explain to the international community what went wrong during the past eight years and make sure that they understand the mistakes will not be repeated. Terrill also stressed the importance of sending a similar message domestically to the public.

“We need to explain to the American people why it is, and how it is, that ensuring our commitment to the rule of law in our national security and foreign policy in fact makes them safer [and] enables their government to have a more effect...it is not a constraint. The rule of law enables,” said Terril.

Detainee stays in prison no matter the verdict

Salim Hamdan, the defendant at the first military commission since World War II, would still be considered an enemy combatant, subject to detention, regardless of the outcome of his trail. A verdict was expected today out of Guantanamo Bay prison in the case against Hamdan, the former driver and alleged body guard of al-Qaida leader Osama bin Laden. "Even if he were acquitted of the charges that are before him he would still be considered an enemy combatant...and still a danger and would likely still be detained for some period of time thereafter," said Pentagon spokesman Geoff Morrell. Morrell explained that Hamdan, if acquitted, can go to a review board, which judges suitability for release or transfer. Also if he is not found guilty, Hamdan may also have the opportunity to challenge his status as an enemy combatant in court.

Morrell said that the Defense Department was pleased that the commission was taking place. "We think that you've seen a fair and transparent process," he said. 'It was a good first effort...we hope it is the beginning of at least 20 additional trials that will hopefully take place sooner than later down there.

Morrell also addressed recent comments by the Secretary of Defense Robert Gates that the DoD is working toward facilitating more U.S. troops in Afghanistan Morrell emphasized that the situation in Afghanistan is not urgent and that despite the commanders' request for more ground forces, troop levels in Iraq are not directly tied to a force increase in Afghanistan. "I know much has been made of the correlation between forces coming down in Iraq and going up in Afghanistan and while that certainly would seem to be the most natural transaction to take place, the truth is we're 2.5 nearly million strong around the world, we have the means to draw forces elsewhere. Whether that be through reserves the [National] Guard or drawing down from other places around the world where we have commitments. "

Democrats blocking executive privilege

The House Constitution, Civil Rights, and Civil Liberties Subcommittee met to discuss the State Secrets Protection Act of 2008. Rep. Jerrold Nadler (D-N.Y.) who introduced the legislation, said members of the Executive Branch are misusing the state secrets privilege to avoid Congressional oversight and thus, shielding itself from questions concerning spying against Americans and acts of torture committed at Guantanamo Bay. He said the act protects justice and, noting checks and balances, the Constitution. Rep. John Conyers (D-Mich.) referenced a Los Angeles Times article from 2006 that suggests over half of government information is over-classified.

Rep. Trent Franks (R-Ariz.) said disclosing classified information threatens the national security of the United States and that though a denial of access to judicial review may be disadvantageous for some, it is necessary for the safety of all Americans. Franks said that the post-September 11 era has shown the significant role of the state secrets privilege in the Department of Justice. He also said the Supreme Court has defended the privilege, adding that he finds it “shocking” that Democrats want courts to deviate from precedent as 200 detainees at Guantanamo Bay qualify for trial in American courts.

Meredith Fuchs of the National Security Archives supported the State Secrets Protection Act, saying that federal agencies often do not feel the need to disclose information without independent pressure. She said courts should have the right to consider evidence in claims of state secrets privilege, adding that courts should not refuse evidence provided by non-governmental experts. Steven Shapiro of the American Civil Liberties Union said Nadler’s legislation restores the state secrets privilege to its proper role and bring legal clarity. Shapiro said the ACLU supports the passing of the State Secrets Protection Act. Michael Vatis, a partner at Steptoe & Johnson, LLP expressed concern with a section of the act he said could be interpreted to mean that courts would analyze governmental and independent evidence equally. He said courts should exercise judgement but give substantial weight to the, potentially better-informed, government.

Attorney General: Enemy combatants have constitutional right to challenge their detention

Attorney General Michael Mukasey speaking at the American Enterprise Institute [AEI] today called on Congress to act on detainees at Guantanamo Bay possibly trying to usurp the court system. Under the rules of habeas corpus, the 270 detainees at Guantanamo Bay have a constitutional right to challenge their detentions. The overriding issue facing the judicial system at the moment is when they are allowed to pursue legal action under habeas corpus. Mukasey called on Congress to draft legislation that would “act to resolve these difficult questions that have been left unanswered.”

Mukasey believes that under the modernization of the Foreign Intelligence Surveillance Act [FISA] the next administration will have what they need to “get the job done,” said Mukasey. According to Mukasey, the passage and ultimate signature of the president on FISA “shows how our branches of government can work together.” But Mukasey was quick to reiterate the administrations support not only on FISA but on detaining enemy combatants at Guantanamo Bay. “The United States has every right to detain enemy combatants who wish the United States harm,” said Mukasey.

Aiming more of his remarks at Congress Mukasey called on Congress to “reaffirm for the duration of the conflict [In Iraq and Afghanistan] the ability to detain enemy combatants.” Mukasey closed by saying that “Congress should make sure that the detainees cannot use other alternatives to challenge their detainment.”

Feith playing defense against interrogation accusations

The House Judiciary Subcommittee on Constitution, Civil Rights, and Civil Liberties held its fourth hearing on Guantanamo Bay Interrogation Rules. Subpoenaed former Undersecretary of Defense for Policy Douglas Feith gave testimony to counter accusations that he encouraged inhumane interrogation techniques.

Chairman of the Subcommittee, Jerrold Nadler (D-NY), said that the Bush administration authorized the use of torture, calling it a “disgrace.” He said that laws set forth in the Geneva Convention cannot be ignored by the administration in its favor. Douglas Feith used his testimony to defend himself against accusations made by author Philippe Sands in his book “Torture Team.” Feith first said that his subpoena to testify before the Subcommittee was unnecessary. He said that Sands portrayed him inaccurately and misquoted him several times. Feith said Sands wrote recklessly and carelessly in his book. Feith said he actually championed the Geneva Convention and only said that detainees are not worthy of POW status, because that would make intelligence impossible to gather. Feith added that he even wrote the policy for returning detainees.

Sands said at the hearing that he is open to free discussion of his book and stands to be corrected, but denies making any mistakes. From an interview, Sands quoted Feith as saying that all of the Geneva Committee does not apply to al-Qaeda detainees.

When Congressman Nadler asked Feith if interrogation tactics of questionable humanity should be allowed, Feith replied that it depends on how they are used.