Holder Calls Bush Detentions Illegal?

Big Hat Tip to SuperBowlXX, for the original diary on the issue. Go give him some props.

Link to TPM’s Department Of Justice Withdraws ‘Enemy Combatant’ Definition For Guantanamo Detainees

“As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law,” said Attorney General Holder. “The change we’ve made today meets each of those standards and will make our nation stronger.”

Did Attorney General Holder just call the Bush detentions illegal? In a statement released by the DOJ today, Holder announced some sweeping changes to the Bush standards of detention that lead to the legal quagmire at the Guantanamo Bay Detention Facility.

Why do we need to change them if they are not illegal?

If they are illegal, where are the indictments, investigations and prosecutions?

The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase “enemy combatant.”

The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.

Does that not state that there have been persons detained for insubstantial support, in other words….that they were innocent?

Is that not a tacit admission that Bush detained innocent people? Is not detaining…and torturing…innocent people a crime?

This statement comes as a reslut of the Boumediene v. Bush case. The legalities we are dealing with here are multi-leveled and complex. Iow, largely incomprehensible as an overall strategy to anyone but attorney’s deeply immersed in the issues.

While Holder’s statement must be taken as a positive development in the Big Picture of detention, (Note that there is no mention as to whether this applies to the detainees at Bagram, however where there are perhaps thousands of “illegal combatants still in custody) there are some troubling takes on the case itself that are NOT positive.

“It is fair to say that the current brief that is filed by the new administration supports a lot of the arguments that were made by the previous administration,” said Kate Toomey, an attorney with Baach Robinson & Lewis who is representing the former detainees, in an interview with RAW STORY.  “They continue to assert that torture was in the scope of employment and could be reasonably expected. They continue to assert that these [top officials] be entitled to immunity. They also continue to argue that detainees at Guantanamo don’t have constitutional rights.”

“The reason we have that safeguard is we don’t always have the right person,” said Obama at the campaign rally. “We don’t always catch the right person. We may think this is Muhammad the terrorist. It might be Muhammad the cab driver.”

Given statements like these made by President Obama, Toomey said she and others involved with the case had been hopeful that the new Justice Department would have taken a stronger stance on some of the most criticized policies of the Bush administration.

“We had hoped that they would file something that separated them from the former administration and obviously we had hoped that they would be taking a stronger moral stance about what should be anticipated from senior officers including the Secretary of Defense on legally standing prohibitions,” Toomey said, adding, “There’s no question that the U.S. law forbids people from ordering torture. And so it’s unfortunate that they have sort of squandered an opportunity to have made that point.”

And from Daphne Eviatar, who HAS been following these cases closely…

Although some civil rights lawyers had hoped the Obama administration would change the government’s position – or at least try to settle this case, which is at the very least an embarrassment to the United States –  the former prisoners had no such luck. Today, the Justice Department filed a brief arguing, as it did in Padilla’s case against Yoo, that government officials are not liable for torture, abuse, denial of due process or religious rights, because the right of Guantanamo prisoners not to suffer those abuses at the hands of the U.S. government was not clearly established at the time.

That would seem to contradict previous statements by President Obama and Attorney General Eric Holder that torture (including waterboarding) and other abuses are clearly illegal, now and always, and that the president can’t simply override that prohibition. It also may discourage those who are hoping the president will eventually support prosecutions of former Bush officials for exactly those crimes.

So while the Holder statement is good news as far as “Moving Forward” as per Obama’s stated policy….defending the Bush positions certainly does seem to be undermining any efforts at accountability.

When Holder apparently says here…..

“As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law,” said Attorney General Holder. “The change we’ve made today meets each of those standards and will make our nation stronger.”

….that the Bush policies WERE illegal…..or else why would we need to change them to be governed by law? He is also apparently not addressing any possible legal consequences for the people who implemented an illegal system.

And saying, apparently, that there will be no accountability for the suffering and death that has been caused due to the illegal policies of The Bush Torture Conspiracy.

Perhaps someone wiser than I can inform us as to how an Attorney General can call a system illegal, can call the waterboarding that took place as part of that system torture, which is of course illegal…..and yet take NO legal action against those who designed, authorized, oversaw and participated in that very same system of illegal detention and torture?

And in fact….defend those very same policies, as in this case?

It boggles my mind.


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  1. Photobucket

  2. … from watching the Leahy hearing on forming a commission, I don’t think they see it as illegal.

    “Mistakes were made.”

    So Holder is just fixing those mistakes so we don’t continue to make mistakes.

    Strange development.

    • Robyn on March 14, 2009 at 12:32 am
    • Edger on March 14, 2009 at 12:37 am

    but not really “Illegal”?

    But then how would Holder know without investigations, prosecutions, trials… and… and… and… jury verdicts? You know, acquittals or convictions?

    Or am I just being quaint here again?

  3. It seems to me that they’re attempting to make solid changes without pointing a finger to anyone, or, as you say, expressing the legality or lack of legality.  But, I think, looking beneath it all, every bit of what was done was illegal.  Very early on, just after detainees had been transported to Guantanamo, and Bush claimed that they were not subject to national or International laws because Guantanamo was not a territory of the United States.  I saved an article back then (can’t find it right now, saved elsewhere), but the article clearly stated WAY BACK THEN, that Bush was wrong and that all detainees were subject to the international laws period, regardless of the location of Guantanamo.

    But, like you, I find it all a little strange to understand.  Maybe, the fact that Cheney lives just 10 minutes walking distance from the CIA Headquarters has something to do with it!  LOL!

  4. This topic was the lead…she spent a good 10 minutes it seemed.

    Turley was pretty good. as usual.

    If you missed it its online.


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