Via American Progress and Daily Kos:

GONZALES SAYS ADMINISTRATION IS A 'STRONG SUPPORTER OF GENEVA CONVENTIONS: "At the same time, President Bush recognized that our nation will continue to be a strong supporter of the Geneva treaties. The president also reaffirmed our policy in the United States armed forces to treat Al Qaeda and Taliban detainees at Guantánamo Bay humanely and, to the extent appropriate and consistent with military necessity, in keeping with the principles of the Third Geneva Convention."
- Alberto Gonzales, 5/15/04 (NYT Op-Ed)

Versus

GONZALES SAYS GENEVA RESTRICTIONS ARE OBSOLETE: "The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians...In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
- Alberto Gonzales, 1/25/02 (Memorandum to the President, as reported in Newsweek 5/16/04)

Unless we're thinking about a different memo, the memo from Gonzales was leaked and written about extensively in the mainstream media in early 2002, as was Colin Powell's disagreement with the Administration's intention to withhold Geneva Convention protections from Taliban fighters as well as al Qaeda. There are 59 news articles on Lexis.com discussing the memo between 1/28/02 and 2//8/02.

We're not sure why Newsweek thinks this is a scoop. Originally, Bush was considering withholding the Geneva protections from both the Taliban and al-Qaeda detainees. Gonzales agreed with that approach but wrote Bush a memo in which he advised Bush that Colin Powell disagreed with the policy:

The Los Angeles Times has conducted an investigation into the deaths of detainees in Iraq and Afghanistan.

The Times has identified at least 18 cases of deaths of detainees in Iraq and Afghanistan beginning in 2002 from apparent mistreatment or shootings during prison unrest and other incidents. At least 14 occurred in Iraq and four in Afghanistan. The CIA has been connected by investigators, witnesses or other sources to as many as five of the deaths.

Independent human rights groups insist that more have died than the military has disclosed. They say that the military has refused to release sufficient information and that the investigations so far have provided too little accountability. Apparently, only one low-ranking soldier has been tried and convicted for shooting an unarmed prisoner. He was demoted to private and discharged from the Army.

Where do the numbers come from?

Law Prof Eric Muller of Is That Legal? asks, "Did the Justice Department Lie to the Supreme Court?" Check out the April 28 oral argument exchange Eric cites in the Hamdi and Padilla cases, between Justice Ginsburg and Paul Clement, the Deputy Solicitor General.

Eric says:

...we now know that the Justice Department has been involved in reviewing and approving methods of interrogation that have been used in at least some post-9/11 cases. Given that, I think it now fair to inquire--and I hope a relevant
congressional committee will do so--whether the Solicitor General's office knew, or could have known through the exercise of ordinary diligence, that our executive was using techniques of "mild torture" in interrogating prisoners of war and enemy combatants. Did Deputy Solicitor General Paul Clement make a knowingly or recklessly false assertion to the United States Supreme Court in order to bolster the government's legal position?

The New York Times today reports that the CIA has used harsh, coercive measures against Al Qaeda detainees. We think that's a gross understatement. If the article is true, why not call it what it is: torture:

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as "water boarding," in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.

....Counterrorism officials say detainees have also been sent to third countries, where they are convinced that they might be executed, or tricked into believing they were being sent to such places. Some have been hooded, roughed up, soaked with water and deprived of food, light and medications.

These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. The rules were among the first adopted by the Bush administration after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding throughout the government that officials would have greater freedom to deal harshly with detainees.

The FBI won't participate in the conduct:

Via FourthAmendment.Com:

Strip frisk policy of inmates was related to a penological purpose and was valid: Davidson v Kyle (2004, WD NY) 2004 US Dist Lexis 8013. Defendant answering door in response to police knock was in public place for arrest on warrant under Santana; he was not under compulsion by answering door: State v Shellenbarger (2004, Ida App) 2004 Ida App Lexis 37.

Comment: One cannot help but wonder what the current allegations of U.S. violations of the Geneva Conventions in Iraq are having, consciously or subconsciously, on the deliberations of the U.S. Supreme Court in Rasul v Bush, the Guantanamo detainees case, considering that the government argues that the detainees at Guantanamo are not subject either to the Geneva Conventions or the International Covenant on Civil and Political Rights, treaties championed by the U.S. when they were adopted. If the Baghdad press conference at 9 am ET CNN today is an indication, we consider the allegations there a violation of the Geneva convention. In addition, a Canadian citizen living in Los Angeles has sued in the U.S. Claims Court claiming he was tortured in Iraq at the beginning of the war, and he saw worse than he received. What happened happened, and we'll know more soon, if the alleged rape and homicide photographs are released. But, the fact that it might happen in the future was the reason the U.S. military gave in early 2001 for not wanting the U.S. to ratify the International Criminal Court treaty because we did not want our soldiers tried as potential war criminals. Makes one wonder what they were planning for Iraq.

Who would have thought that military defense lawyers would be compared to William Kuntsler? In the case of those defending the Guantanamo detainees, the praise is well-justified:

The Pentagon wants the military commissions, the first for the United States since the end of World War II, to be seen as fair at home and abroad. But the military lawyers, in playing the kind of attack-the-system role that William Kunstler was known for, have become widely quoted around the world and acclaimed by some as heroes after appearances in London and Australia in which they denounced the tribunals.

Last month, an audience at Oxford University in England was stunned, witnesses said, when two of the lawyers, Lt. Cmdr. Charles Swift of the Navy and Maj. Mark Bridges of the Army, said the tribunals were not capable of producing a fair and just result....Murray Wesson, a Rhodes Scholar from South Africa who attended, wrote on his Web log: "What I was unprepared for, given that these were, after all, military lawyers, was how critical of the process they were. Indeed, they went so far as to describe the tribunals as `fundamentally flawed' and insinuated that they would not amount to fair trials."

The lawyers are right and we're proud of them. Now we just need the American media to pay as much attention to them as has the international press.

It cost $31 million to build. It will open next week with an official commemoration ceremony. It is designed to hold 100 inmates for several years--or permanently. Say hello to Camp 5 at Guantanamo Bay ....the latest and greatest in detention camps.

Over at Mere Dicta (Boalt School of Law, Berkeley), Michael W. Anderson is discussing Yaser Hamdi and Jose Padilla in the context of the Constitution's Treason Clause. The basic issue:

I've heard little discussion about the relevance of the Treason Clause to the Hamdi and Padilla cases before the Court this week. Yet it seems to me to be very pertinent. The basic position of the Bush Administration and the Department of Justice goes something like this:

Bush & DoJ: "Enemy combatants" like Hamdi and Padilla are engaged in acts of war against the United States. The Executive Branch has the power to detain combatants in a war, and the Bill of Rights do not apply to those detained in the course of a war. This seems to make sense at first glance, since soldiers engaged in combat obviously need to be able to deal with enemy fighters unencumbered by warrants, courts, bail hearings and so on. So if you accept that the War on Terror falls under the rubric of a traditional war (a debatable point for several reasons, but a premise that I'll grant arguendo), this argument holds water from an intuitive standpoint.

But the issue is a very different one when the government is detaining American citizens for an extended period of time. Then, the notion that the Constitution gives no role to the judiciary in adjudicating acts of war runs flat into the text of the Treason Clause, Article III, Section 3, Clause 1:

Anderson's prediction is that Supreme Court may rule that Padilla's detention is illegal, while Hamdi's is not, and he explains why.

American citizen Jose Padilla has been held as an "enemy combatant" in a military brig in South Carolina since June, 2002--almost two years. In that time, he has been allowed to write his mother once:

"In the name of God the merciful the mercy giver," Mr. Padilla wrote, "I have been allowed to write you a card and just letting you know I'm doing fine and in good health. Do not believe what is being said about me in the news it is untrue and I pray that we can have a reunion. Love your son Pucho." Pucho was Mr. Padilla's childhood nickname.

That card was the sum and substance of Mr. Padilla's communication with the outside world for about 21 months.

In a ten page (internet length) article, the New York Times examines Padilla's life (Brooklyn born, Chicago raised) and his case, and for the first time, is able to interview his family, friends, ex-wife and second wife:

People For the American Way Foundation has issued a new report: “Undermining the Constitution: The Bush Administration Detention Policy,” which can be found here.

The Court this week heard arguments concerning the long-term detention of foreign prisoners at Guantanamo Bay. Next week, the Court will hear the cases of two American citizens: Yasir Esam Hamdi, held for two years, and Jose Padilla, held for 22 months. Both were only recently given brief access to legal counsel, although the Administration continues to argue they have no right to a lawyer. In the Hamdi, Padilla and Guantanamo, cases the Bush Administration continues to maintain that it has the right to indefinitely detain suspects without judicial oversight.

“Not since the internment of Japanese American citizens during World War II have we seen such a far-reaching assertion of Presidential power. It chills me to the bone that any American citizen, regardless of guilt or innocence, can be held for so long with no access to justice,” said Ralph G. Neas, President of People For the American Way Foundation. “As the war in Iraq and terrorist threats to the United States continue, the Court must assert its vital role as the guardian of our most basic freedoms, and a check on untrammeled power.”

Bump and Update:

You can listen to the oral arguments here.

The Supreme Court heard arguments in two cases today involving so-called "enemy combatants" held at Guantanamo Bay. The core question:

Can these foreign-born prisoners, held outside U.S. borders, use U.S. courts to try win their freedom?

Georgetown Law Prof and civil liberties expert David Cole, writing in the New York Times, says:

These suggestions that noncitizens have less right to be free than citizens are ill advised. Some provisions of the Constitution do explicitly limit their protections to United States citizens — the right to vote and the right to run for Congress or president, for example. The Bill of Rights, however, does not distinguish between citizens and noncitizens. It extends its protections in universal language, to "persons," "people" or "the accused." The framers considered these rights to be God-given natural rights, and God didn't give them only to persons holding American passports.

When one considers the specific right at issue in the enemy combatant cases — the right not to be locked up without a fair process — there is also no good reason to differentiate between citizens and foreigners. From the prisoner's standpoint, every human being has the same interest in not being locked up erroneously or arbitrarily. And from the government's perspective, the security interest in detaining terrorists is the same whether they are citizens or not.

The Miami Herald reports that Guantanamo is granting the media greater access to facilities at Guantanamo:

For the first time since terrorism suspects were brought to the base two years ago, authorities in recent weeks opened the door to rooms used for interrogations, provided limited information on efforts to gather intelligence from prisoners and showed off a courtroom where military tribunals likely will be conducted.
They also allowed some photographs of restricted areas and permitted interviews with interrogators and others who deal with the prisoners. The new access comes as attorneys for the families of 16 captives are seeking access to federal courts to challenge their indefinite detention. The U.S. Supreme Court will hear oral arguments on April 20.