Obama announces he will continue Bush signing statement practice

Don’t Rely on Bush’s Signing Statements, Obama Orders

3.9.09 / Charlie Savage / New York Times

WASHINGTON — Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

But Mr. Obama also signaled that he intends to use signing statements himself if Congress sends him legislation that has provisions he decides are unconstitutional. He pledged to use a modest approach when doing so, but said there was a role for the practice if used appropriately.

“In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch. The document was obtained by The New York Times.

Mr. Obama’s directions marked the latest step in his administration’s effort to deal with a series of legal and policy disputes it inherited from the Bush administration. It came the same day that Mr. Obama lifted restrictions Mr. Bush had placed on federal financing for research that uses embryonic stem cells.

Mr. Bush’s use of signing statements — official legal documents issued by a president the day he signs bills into law, instructing executive officials how to implement the statutes — led to fierce controversy.

Mr. Bush frequently used signing statements to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, claiming that the laws did not need to be enforced or obeyed as written. The laws he challenged included a torture ban and requirements that Congress be given detailed reports about how the Justice Department was using the counter-terrorism powers in the USA Patriot Act.

Dating back to the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. Presidents began doing so more frequently starting with the Reagan administration.

But Mr. Bush broke all records, using signing statements to challenge about 1,200 bill sections over his eight years in office — about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.

Many of Mr. Bush’s challenges were based on an aggressive view of the president’s power, as commander-in-chief, to take actions he believed necessary to protect national security regardless of what Congress said in federal statutes.

His use of signing statements prompted widespread debate. The American Bar Association declared that such signing statements were “contrary to the rule of law and our constitutional separation of powers,” calling on Mr. Bush and all future presidents to stop using them and to return to a system of either signing a bill and then enforcing all of it, or vetoing the bill and giving Congress a chance to override that veto.

But the Bush administration defended its use of signing statements as lawful and appropriate. And other legal scholars, while critical of Mr. Bush’s use of the device, said that the bar association’s view was too extreme because Congress sometimes passed important legislation that had minor constitutional flaws. They said it would be impractical to expect a president to veto the entire bill in such instances.

Mr. Obama’s move may be geared to that kind of legislation. He issued the instructions as Congress is finalizing a huge omnibus spending bill filled with provisions that could affect presidential power, like requirements to submit reports to Congress or to get the approval of a committee before taking certain actions.

In his memorandum, Mr. Obama wrote: “Particularly since omnibus bills have become prevalent, signing statements have often been used to ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire legislation.”

Mr. Obama’s policy directive was consistent with what he said during the 2008 presidential campaign. Responding to a Boston Globe questionnaire about executive power, he criticized Mr. Bush’s aggressive use of signing statements as an abuse, but also said that he would use them too, albeit in a more restrained manner.

By contrast, Mr. Obama’s rival in the general election, Republican Senator John McCain of Arizona, pledged never to issue a signing statement if elected. Mr. McCain was the primary sponsor of the 2005 torture ban that Mr. Bush challenged after signing.

In his directive, Mr. Obama said that any signing statement issued before his presidency should be viewed with doubt, placing an asterisk beside all of those issued by Mr. Bush and other former presidents.

“To ensure that all signing statements previously issue are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with , and provision of a statute,” he wrote.

Ex-Israeli president to face rape charge

3.8.09 / AP

JERUSALEM: Israel’s Justice Ministry says former President Moshe Katsav is to be charged with raping a woman who once worked for him.

The ministry says Attorney General Meni Mazuz has decided to indict Katsav, who wants to go to trial to clear his name.

Last year Katsav called off a plea bargain that would have required him to admit to lesser charges of sexual misconduct but avoid up to 20 years in jail.

Katsav stepped down in June 2007 after four female former employees accused him of crimes including rape, sexual assault and sexual harassment.

He resigned two weeks before his seven-year term expired. He says he is innocent of any wrongdoing and was a victim of a political witch hunt.

Katsav was replaced by elder statesman and Nobel peace laureate Shimon Peres.

LA Times: Now that Bush is gone we’ll call him a liar and torture shameful

This is well known, and the only reason I’m posting this is because the era of  torture and deception has not ended with Bush. It has gotten and is getting more slick and brutal. And this same paper, like so many others will go on denying and calling me and everyone else who report when Obama and Brown and Co. continue to implement the Illuminati agenda liars, exaggerating, and the break glass if emergency, “conspiracy theorist”. How did they ever get away with it??  How indeed!

Bush’s big lies

Behind the sordid memos that purported to give legal justification for the war on terror.

3.5.09 / Rosa Brooks / LA Times

How did they ever get away with it?

On Tuesday, the Justice Department released a batch of memos drafted in 2001 and 2002 by lawyers in the Bush administration’s Office of Legal Counsel. Written mainly by John Yoo, then a deputy director in the office, they laid out the purported legal justifications for a theory of presidential power amounting to virtual dictatorship.

Collectively, they declare that if the U.S. military were deployed against suspected terrorists inside the United States, even U.S. citizens wouldn’t be protected by the 4th Amendment’s prohibition against unreasonable search and seizure. They also conclude that citizens and noncitizens could be designated “unlawful enemy combatants” by the president on the basis of secret evidence. And once that happens, they could be locked up indefinitely and tortured, without charge, access to counsel or any procedure through which to challenge the detention or treatment.

I know: All this is old hat. With so many leaks over the years, who doesn’t know by now that the Bush administration sought virtually unlimited executive power to monitor, detain and use force against individuals anywhere around the globe in the name of the “war on terror”?

But even today, it’s still shocking to see it laid out in black and white.

In a way, what’s most shocking is just how outrageously bad the office’s legal arguments were. The 2001-2002 memos mischaracterize previous Supreme Court decisions, ignore crucial legal precedents and contain gaping holes in logic. To accept the theories the Office of Legal Counsel came up with, you need to assume that George Washington and Thomas Jefferson had it all wrong when they rebelled against Britain’s King George III in 1776. You need to believe, more or less, that the 225 years of American jurisprudence between 1776 and 2001 amounted to one giant mistake.

The memos are so embarrassingly foolish that the Office of Legal Counsel itself was ultimately forced to repudiate them. In October 2008, the office advised that “caution should be exercised before relying in any respect” on its own previous advice about domestic surveillance or the domestic use of the military. A week before President Obama’s inauguration, the office issued another “never mind” memo, stating that “certain propositions stated in several memos respecting … matters of war and national security do not reflect the current views of this office.”

Better late than never, I guess.

But all this raises the question: How did such dangerously bad legal memos ever get taken seriously in the first place?

One answer is suggested by the so-called Big Lie theory of political propaganda, articulated most infamously by Adolf Hitler. Ordinary people “more readily fall victim to the big lie than the small lie,” wrote Hitler, “since they themselves often tell small lies … but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously.”

In other words: Paradoxically, the more outrageous the claim, the more apt we are to assume there must be some truth to it. Just as some banks and insurance companies are apparently “too big to fail,” some claims from those with political power seem to strike us as “too big to disbelieve.” “That seems so outrageous it must be right,” we tell ourselves. “The important people keep saying it — they must know something I don’t know.”

That’s the only explanation I can come up with for why the 2001-2002 memos stood as Bush administration doctrine for as long as they did. (The Big Lie theory also helps explain why other manifestly false Bush administration claims prevailed in the face of the evidence: Recall, for instance, how we were assured that Iraq had weapons of mass destruction and that the war would be a cakewalk?)

Big lies prevail because we can’t bring ourselves to believe that our leaders could be so dishonest or deluded. And big lies can do terrible damage, of course. The Bush administration’s big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture.

In the end, thankfully, all big lies collapse under their own weight. We’re in a new era: The early memos produced by the office have been repudiated, and the Bush administration was sent packing with rock-bottom public approval ratings.

But don’t think we’re out of the woods. As Hitler demonstrated, some small part of the most “impudent lies” will always remain and stick. Big lies leave little lies in their wake, changing the political discourse in enduring, difficult-to-detect ways.

And that’s the challenge we now face: tracing the barely visible effects of the Bush administration’s now-repudiated big lies — through our legal system, our constitutional system, our foreign policy — and undoing all the damage.

It will take a generation.

rbrooks@latimescolumnists.com

McDonald’s says: no workman’s comp for minimum wage earning employee shot protecting patron

McDonald’s: No workers comp for employee shot protecting patron

2.22.09 / Muriel Kane / Raw Story

Fast food giant McDonald’s has denied workers compensation benefits to a minimum wage employee who was shot when he ejected a customer who had been beating a woman inside the restaurant.

A representative of the administrator for McDonald’s workers compensation plan explained that “we have denied this claim in its entirety as it is our opinion that Mr. Haskett’s injuries did not arise out of or within the course and scope of his employment.”

Nigel Haskett, then aged 21, was working at a McDonald’s in Little Rock, Arkansas last summer when he saw a patron, later identified as Perry Kennon, smacking a woman in the face. A surveillance video of the incident, which had been posted to YouTube, was taken down after McDonald’s charged copyright infringement, but according to written descriptions of the video, Haskett tackled Kennon, threw him out, and then stood by the door to prevent him from reentering.

(Update: The video is now available in a news report from KARK4 in Little Rock, which is not subject to copyright claims and which can be seen below.)

Kennon went to his car, returned with a gun, and shot Haskett multiple times. Haskett staggered back into the restaurant and collapsed.

Kennon, who has a long criminal record, was arrested a few days later and charged with first-degree battery. The judge at his arraignment praised Haskett as a hero.

Haskett has since undergone three abdominal surgeries and has incurred over $300,000 in medical bills. McDonald’s has declined to comment on their reasons for refusing his claim, because the case is still pending before the Workers Compensation Commission, but according to Haskett’s lawyer, Philip M. Wilson:

“McDonald’s position now is that during thirty-minute orientation Mr. Haskett and the other individuals going through the orientation were supposedly told that in the event of a robbery or anything like a robbery . . . not to be a hero and simply call 911. Mr. Haskett denies that anything like that was even mentioned during orientation or at any time during his employment with McDonald’s.”

McDonald’s may be on shaky legal ground in their attempt to deny benefits. As explained by the blog “Joe’s Union Review,” courts have repeatedly ruled that injuries incurred in the course of “good samaritan” acts while on the job are entitled to compensation, especially if they result in good will towards the employer.

“McDonald’s is really living up to it’s reputation as an evil empire,” another blog comments. “They’re no longer merely all about moving in on the little guy, or clogging your arteries with fry grease, or making kids big chunkers, but are also now turning on their employees.”

This video was broadcast by KARK4 News and was posted at YouTube on February 22, 2009.

11th hour letter issued by White House Counsel gives Karl Rove and other Bush crew members total immunity

Letter to Rove Says He Has ‘Absolute Immunity’ and Can Ignore Subpoena

1.30.09 / Jason Leopold / The Intelligence Daily

Earlier this month, Conyers’ Judicary Committee also quietly subpoenaed former White House Counsel Harriet Miers and George Bush’s former Chief of Staff Josh Bolten. The former advisers never showed up, according to documents.

(The Intelligence Daily) — Former White House senior adviser Karl Rove said he would ignore a Congressional subpoena that calls for him to appear before the House Judiciary Committee Monday to give a deposition on the politicization of the Justice Department.

In an interview Thursday with right-wing talk show host Bill O’Reilly, Rove, who is also a Fox News contributor, said one of former President Bush’s last acts before he left office was to have White House Counsel Fred Fielding write a letter stating that Rove was protected by “absolute immunity” and that he can legally ignore a congressional subpoena.

“I’ve been directed on Jan. 16, by the outgoing president’s legal counsel not to respond to a subpoena…exerting privilege on behalf of the former president,” Rove said.

The letter Fielding wrote was addressed to Robert Luskin, Rove’s longtime Washington, D.C. attorney. It appears that Luskin requested the letter on behalf of Rove who was likely aware that Congress would continue to pursue his testimony after Bush left office.

“On behalf of your client, former Senior Adviser to the President Karl Rove, you have previously asked us whether, in view of the President’s assertion of Executive Privilege over Mr. Rove’s testimony relating to the U.S. Attorneys matter, he must appear, give testimony, and produce documents to the House Judiciary Committee,” Fielding’s letter says, according to a copy obtained by The Public Record. “We have previously been advised by the Department of Justice that Mr. Rove has absolute immunity from compelled Congressional testimony as to matters occurring while he was senior adviser to the president.”

“We anticipate that one or more committees of the United States Congress might again seek to compel Mr. Rove’s appearance, testimony or documents on the subject of the U.S. attorneys matter,” Fielding’s letter to Luskin says. “Please advise Mr. Rove that the President continues to direct him not to provide information (whether in the form of testimony or documents) to the Congress in this matter and that consistent with the president’s exercise of executive privilege relating to his testimony, and documents, and in view of the Department’s longstanding position on the immunity question, the President directs him, in the exercise of this constitutional immunity, not to appear before Congress on this matter.”

Luskin sent the letter to President Barack Obama’s White House Counsel, Gregg Craig seeking the Obama administration’s position on matters related to Bush’s unprecedented privilege claims even though he is no longer president. White House Press Secretary Robert Gibbs said Craig is reviewing it.

Bush administration officials have previously said that former President Bush was unaware of and played no role in the decision to fire federal prosecutors. Since executive privilege usually applies to internal communications and documents it’s unclear how the privilege rule would apply to Rove’s testimony if Bush never discussed the firings or played a role in the dismissals as he and his advisers have maintained.

Fielding also sent letters to attorneys representing former White House Counsel Harriet Miers and Bush’s former Chief of Staff Josh Bolten, both of whom were subpoenaed last year to provide the Judiciary Committee with documents and testimony related to the attorney firing. Bush asserted executive privilege in that case as well.

In fact, according to letters sent to Elliot Mincberg, chief counsel of oversight and investigations for the Judiciary Committee, by Miers attorney, the Judiciary Committee had quietly issued a subpoena to her on Jan. 9. Miers was asked to provide a deposition to the panel on Jan. 16. She did not comply with the subpoena and Conyers’ committee did not state publicly that he sought her testimony earlier this month.

Miers’ attorney, George Manning, wrote to Mincberg Jan. 15, and enclosed a copy of a letter Fielding prepared on Jan. 15 which said Miers had “absolute immunity.”

“I am in receipt of the subpoena to Ms. Miers dated January 9, 2009,” Manning’s letter says. “Please find attached a letter from the Counsel to the President of the United States informing Ms. Miers that, in view of the Executive Branch’s assertions of executive privileges and immunities in this matter, she continues to be directed not to provide information (including documents or testimony) to the Congress in this matter, including the deposition scheduled for January 16, 2009.”

Earlier this month, a new set of House rules was passed reviving subpoenas issued during the 110th Congress.

Fielding sent similar letters last year on behalf of Rove, Miers and Bolten after all three were subpoenaed to testify about the role the White House played in the firings of nine U.S. Attorneys in December 2006 and Rove’s role in the apparent political prosecution of former Alabama Gov. Don Siegelman.

That letter said the “President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.”

Last year, the Justice Department’s Inspector General and the Office of Professional Responsibility issued a 356-page report on the U.S. Attorney firings that “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.”

Inspector General Glenn Fine and H. Marshall Jarrett, head of the Office of Professional Responsibility, found that Miers was involved in at least two of the dismissals and that Bolten played a role in at least one.

Neither Miers nor Bolten agreed to be interviewed by the Justice Department’s internal watchdogs.

Bolten and Miers were contacted by Nora Dannehy, a federal prosecutor from Connecticut who was appointed by Attorney General Michael Mukasey to continue the investigation of the U.S Attorney firings, according to people familiar with her probe. It’s unknown, however, whether they cooperated or were subpoenaed.

Dannehy is expected to file a preliminary report with the Justice Department in March.

The dispute over Miers and Bolten’s testimony arose when President Bush forbade them to comply with a congressional subpoena about the prosecutors’ firings in 2006. The House then voted to hold the two officials in contempt of Congress, the first time in 25 years a full chamber of Congress has voted on a contempt-of-Congress citation.

In September 2008, U.S. District Judge John Bates rejected Bush’s position, saying the concept of blanket executive privilege lacked legal precedent.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” wrote Bates, a Bush appointee. “In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”

Last October, a Republican-dominated federal Appeals Court panel blocked the enforcement of the Judiciary Committee subpoenas. The panel also refused to expedite consideration of a White House appeal challenging a District Court ruling that had ordered Miers and Bolten to comply. Conyers’ committee appealed the decision. The matter has yet to be decided.

In his Fox News interview with Bill O’Reilly, Rove mentioned the Miers and Bolten case currently before the U.S. Court of Appeals for the District of Columbia.

Rove said Conyers should have waited until the judicial body ruled on the matter before issuing a subpoena for his testimony. Rove then went on to criticize the Michigan Democrat while portraying himself as a victim.

“I don’t know if I’d call it a witch hunt; I don’t think of myself a witch,” Rove told O’Reilly. “He’s sort of like Captain Ahab, and I’m the whale.”

“This is a guy who went to the cloakroom and asked to ‘get his’ — and then filled in a crude way to describe my posterior,” Rove said. “He could wait until the United States judicial system resolves how this ought to be handled, but instead he wanted to have a stunt, and we’ll see what happens.”

The Judiciary Committee has been seeking Rove’s public testimony about the Siegelman case since April as part of its investigation into allegations that the Bush administration used the Justice Department to prosecute more Democratic public officials than Republicans.

Rep. John Conyers, the Judiciary Committee’s chairman, had rebuffed a compromise floated by Rove’s attorney, Robert Luskin, to have Rove testify in private or respond in writing to the committee’s inquiries about the Siegelman case, as well as the firing of nine U.S. Attorneys.

If Rove fails to show up Monday, which is likely the case, the full House will likely vote to hold Rove in contempt, said Rep. Jerrold Nadler, D-NY, during an interview with MSNBC’s Keith Olbermann. What would transpire if Rove were held in contempt is that Congress would refer the matter to the U.S. Attorney for the District of Columbia who would then convene a grand jury. Rove could be arrested if he refused to appear before Congress if ordered to do so at that point, Nadler said.

When asked by O’Reilly if he intended to appear before Congress Monday Rove said, “no.”

How cooking for the Taliban can get you Gitmo’d

How Cooking For the Taliban Gets You Life in Guantánamo

1.30.09 / Andy Worthington / Antiwar.com

Those of us who prefer justice to arbitrary and unaccountable detention without charge or trial were delighted when, last week, Barack Obama fulfilled a long-stated promise and issued a presidential order stating that Guantánamo will be closed “as soon as practicable, and no later than one year from the date of this order,” and establishing an immediate review of the cases of the remaining 242 prisoners to work out whether they can be released.

A year is a long time, of course, if you’re unfortunate enough to have been imprisoned in Guantánamo for up to seven years with no way of asking why you’re being held, but some of us were prepared to give the new president the benefit of the doubt, and to consider that perhaps he didn’t want to make a rash promise that he might find himself unable to fulfill, such as pledging to close the wretched place in a matter of months.

Recent events, however, have demonstrated that, although President Obama has set in motion a policy that addresses the prisoners’ future, their long desire to have an opportunity to question the basis of their detention is currently being addressed not in the White House but in the district courts, following an epic, four-year struggle between the Supreme Court and Congress to grant them their wish. Since the justices of the Supreme Court decisively ended this struggle last June, by ruling that Congress had acted unconstitutionally when it stripped the prisoners of the habeas corpus rights that the Supreme Court had granted them in June 2004, a raft of previously marooned habeas cases has been making its way through the district courts.

Justice and the Habeas Reviews

Although frequently becalmed by pleas from the Justice Department, whose lawyers have had the nerve to claim, after seven years, that they are having trouble rustling up any evidence, a handful of these cases have actually made it to the point where a judge has ruled on their merits. The results have been a vindication for those who have struggled for years to get the prisoners a day in court, and, of course, for the prisoners themselves, because in 23 of the 27 cases reviewed to date, the judges have dismissed the government’s evidence for being empty and unsubstantiated – in one case comparing it to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland – and have ordered the prisoners to be released.

Sadly, the impact on the prisoners has so far failed, for the most part, to match the significance of the rulings. In the case that drew comparisons with Lewis Carroll – that of Huzaifa Parhat, a Uighur from China’s oppressed Xinjiang province – the government lodged a miserable and unprincipled appeal to stop Parhat and his 16 compatriots from settling in the United States, after district court Judge Ricardo Urbina ruled in October that their continued detention in Guantánamo was unconstitutional. In November, Judge Richard Leon, an appointee of George W. Bush, ordered the release of five Bosnians of Algerian origin, after he concluded that the government had failed to establish that, as alleged, they had intended to travel to Afghanistan to fight U.S. forces, but to date only three of the men have been repatriated, and the other two still languish in Guantánamo, as the Bosnian government wrangles over their status. The last case is that of Mohammed El-Gharani, a Chadian national and Saudi resident who was just 14 years old when he was seized in a raid on a mosque in Pakistan. Two weeks ago, Leon comprehensively demolished the government’s supposed evidence against El-Gharani, but he too remains stranded, pending a possible appeal.

To Be or Not to Be (An Enemy Combatant)

In many ways, however, these prisoners are the lucky ones. In four other cases, the scales of justice have tipped the other way, into an alarming arena in which it has become apparent that the Supreme Court failed to address whether, in cases where the government is judged to have produced sufficient evidence to indicate that prisoners were “enemy combatants,” it is justifiable to continue holding them indefinitely.

The problem, as these other four cases have revealed, is that, according to the definition accepted by Judge Leon, an “enemy combatant” does not have to be someone who actually engaged in terrorism or in combat against the United States, but rather someone who was “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners,” which “includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces” (emphasis added).

What this means in reality is that Judge Leon ruled in November that Belkacem Bensayah, the sixth Bosnian Algerian, was an “enemy combatant” not because he had been involved in a specific al-Qaeda plot, and not because he had raised arms against the United States in Afghanistan or anywhere else, but because the government provided what Leon regarded as “credible and reliable evidence,” establishing that he “planned to go to Afghanistan to both take up arms against U.S. and allied forces and to facilitate the travel of unnamed others to Afghanistan and elsewhere,” and that he was “link[ed]” to a senior al-Qaeda operative (identified elsewhere as the mentally troubled training camp facilitator Abu Zubaydah, whose specific links to al-Qaeda have been questioned by the FBI).

This may be sufficient evidence to put Bensayah on trial, although it is surely not adequate to warrant his indefinite detention in Guantánamo, but in the cases of the other three men the noose-like nature of the “enemy combatant” definition was even more pronounced. On Dec. 30, Judge Leon ruled that two more prisoners – the Tunisian Hisham Sliti and the Yemeni Muaz al-Alawi – were also correctly detained as “enemy combatants;” in Sliti’s case because, despite being a cynical and dissolute drug addict, he was associated with individuals connected to al-Qaeda, and, in al-Alawi’s case, because, although he had traveled to Afghanistan before the 9/11 attacks and was not alleged to have raised arms against U.S. forces, he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

Cooking for the Taliban

This ruling in particular cried out for an immediate overhaul of the “enemy combatant” definition, but yesterday the absurdity of holding prisoners as “enemy combatants” who were associated with the Taliban before the 9/11 attacks but never raised a finger against the United States was highlighted even more forcefully when Judge Leon ruled, in the case of the Yemeni Ghaleb Nasser al-Bihani, that he too was an “enemy combatant.”

Leon based his ruling on the fact that the government had established, primarily through interrogation, that al-Bihani had worked as a cook for the Taliban. Concluding that it was “not necessary” for the government to prove that he “actually fire[d] a weapon against the U.S. or coalition forces in order for him to be classified as an enemy combatant,” Leon declared, “Simply stated, faithfully serving in an al-Qaeda-affiliated fighting unit that is directly supporting the Taliban by helping prepare the meals of its entire fighting force is more than sufficient to meet this Court’s definition of ’support.’” He added, “After all, as Napoleon was fond of pointing out, ‘An army marches on its stomach.’”

Al-Bihani listened to Leon’s ruling in a teleconference call from Guantánamo, but was cut off before hearing Leon’s line about Napoleon. His lawyers, Shereen J. Chalick and Reuben Camper Cahn, of the federal defenders of San Diego, said that they would take a rush transcript of the ruling to al-Bihani, adding that he would be “disappointed” with the decision, but the reality, I can reveal, is that al-Bihani gave up on U.S. justice many years ago.

“I Am Definitely an Enemy Combatant”

In 2004, at his combatant status review tribunal at Guantánamo – a toothless administrative review that was designed, essentially, to confirm that, on capture, he had been correctly designated an “enemy combatant” – al-Bihani was acutely aware of Guantánamo’s failings, and he addressed all the issues raised yesterday by Judge Leon. Firstly, he admitted that he had traveled to Afghanistan in April or May 2001 “to fight the jihad with the Taliban” against Ahmed Shah Massoud (the leader of the Northern Alliance), and added, “There is nothing wrong with that in our religion. Is it acceptable for Americans and not for us?”

He then disputed an allegation that he “was an associate of the Taliban and/or al-Qaeda,” pointing out that he had admitted “many times” that he was with the Taliban, but that the statement as it stood “suggests that you are [not] giving me a choice between Taliban and al-Qaeda,” and also denied an allegation that he participated in hostilities against the United States, explaining, “I went to Afghanistan before the Americans. If I wanted to fight the Americans I would have gone there after the Americans arrived.”

It was, however, at the conclusion of his hearing that he demonstrated what can now be seen as a prescient awareness of the inescapable bind in which he found himself. With evident sarcasm, he stated, “I am definitely an enemy combatant. There is no question about that. I am sure that you will find me as an enemy combatant. Nobody has been found to not be an enemy combatant. Everybody has been found to be an enemy combatant. I am certain that I will be found to be an enemy combatant.”

If you want a final demonstration of the ongoing absurdity of Guantánamo, compare the case of Salim Hamdan to that of Ghaleb al-Bihani. Last August, Hamdan, a driver for Osama bin Laden, was tried at Guantánamo in the military commissions conceived by Vice President Dick Cheney and his advisers, sentenced and sent home in November to serve the last few weeks of a five-month sentence delivered by a military jury. Hamdan is now a free man, whereas al-Bihani, a man who never met Osama bin Laden, let alone drove him around, has just been told, by a judge in a U.S. federal court, that the government is entitled to hold him forever because he cooked dinner for the Taliban.

If President Obama is genuinely concerned with justice, he needs to act fast to tackle this squalid state of affairs, which does nothing to undo the previous administration’s disdain for and mockery of the laws on which the United States was founded.

Two judges took bribes to send children to privately owned juvenile detention facilities

State may compensate juveniles sentenced by judges in Luzerne

2.4.09 / Tracie Mauriello / Pittsburgh Post-Gazette

HARRISBURG — State lawmakers are seeking ways to compensate children sent to detention centers by a pair of Luzerne County judges charged with taking kickbacks for sending juvenile defendants to facilities in Luzerne and Butler counties.

Senate Judiciary Committee Chairman Stewart Greenleaf said yesterday he would hold a hearing to find ways to help the children and their families. One option is to provide money from the crime victims compensation fund, said Mr. Greenleaf, R-Montgomery.

The hearing, which has not yet been scheduled, is at the request of Republican Sens. Lisa Baker and John Gordner, whose districts include parts of Luzerne County.

They made the request yesterday, the same day a third Luzerne County court official was arrested in the ongoing corruption probe.

Court Administrator William T. Sharkey Sr., 57, of West Hazelton, yesterday agreed to plead guilty to embezzling more than $70,000 in illegal gambling money seized by authorities between June 1998 and June 2008.

Two other county court officials were charged last week with fraud and conspiracy to commit fraud.

Judge Mark A. Ciavarella and former Senior Judge Michael T. Conahan are accused of taking $2.6 million for sending children to two facilities owned by Pittsburgh businessman Greg Zappala.

Judges Ciavarella and Conahan each could face prison terms of up to seven and three months, according to the terms of plea agreements they signed last week.

No charges have been filed against Mr. Zappala, who is the brother of Allegheny County District Attorney Stephen A. Zappala Jr. and son of former state Supreme Court Justice Stephen A. Zappala Sr.

Meanwhile, the state Supreme Court has agreed to review all juvenile cases adjudicated in Luzerne County during in the last five years.

That’s good news to parents such as Susan Mishanski, whose 17-year-old son was sentenced by Judge Ciavarella last year to 90 days in a juvenile facility in Carbon County.

She said the punishment was excessive and that it traumatized her son, a first-time offender who was expecting community service or a fine for punishing another boy last year. Instead, he was taken from the courtroom in shackles and brought to Camp Adams, where he was beaten by other teenagers, forced to wear ripped clothes four sizes too big and permitted visitors only twice a month for an hour, she said.

“He was humiliated and he was scared,” said Ms. Mishanski of Luzerne County. “I’m absolutely thrilled now that [these judges] got caught.”

Judges Ciavarella and Conahan are scheduled to enter pleas Feb. 12 in U.S. District Court in Scranton.

Mr. Ciavarella, who stepped down as president judge but remains on the court, is continuing to receive a salary of $161,850, although he has been stripped of his judicial powers. Under the terms of his plea agreement, be must resign within 10 days of pleading.

His salary had been $163,260 but was reduced by $1,410 when he stepped down as president judge.

The Supreme Court last week revoked Judge Conahan’s certification as senior judge, a designation given to retired judges who agree to temporary fill in at county courthouses as needed.

Judge Conahan retired in January 2008. He received $39,387 in per-diem pay for work between June 2008 and January 2009, according to records of the Administrative Office of Pennsylvania Courts. It was not clear if he received payments in the first half of last year.

Mr. Sharkey could face up to 10 years in prison and a $250,000 in fines. As part of the plea agreement, he also must pay $71,000 in restitution and resign within 10 days of entering a plea.