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alberto gonzales
After 23 Years, It’s Time to End the War on Terror for Good
Isn’t it time to free the country up to focus on truly pressing national concerns instead of letting the aberrations of the past continue to haunt the present moment?
Oct 03, 2024
September marked the 23rd anniversary of al Qaeda’s 2001 attacks on the United States, which left nearly 3,000 people dead. For the two decades since then, I’ve been writing, often for TomDispatch, about the ways the American response to 9/11, which quickly came to be known as the Global War on Terror, or GWOT, changed this country. As I’ve explored in several books, in the name of that war, we transformed our institutions, privileged secrecy over transparency and accountability, side-stepped and even violated longstanding laws and constitutional principles, and basically tossed aside many of the norms that had guided us as a nation for two centuries-plus, opening the way for a country now in Trumpian-style difficulty at home.
Even today, more than two decades later, the question remains: Will the war on terror ever end?
Certainly, one might be inclined to answer in the affirmative following the recent unexpected endorsement of presidential candidate Kamala Harris by two leading members of the George W. Bush administration which, in response to those attacks, launched the GWOT. First, Bush’s vice president, Dick Cheney, who, after September 11, sought to take the country down the path to what he called “the dark side” and was a chief instigator of the misguided and fraudulently justified invasion of Iraq in 2003, endorsed Vice President Harris. Then, so did Alberto Gonzales who, while serving as White House counsel to George W. Bush and then as his attorney general, was intricately involved in crafting that administration’s grim torture policy. (You remember, of course, those “enhanced interrogation techniques.”) He was similarly involved in creating the overreaching surveillance policy designed and implemented during the first years of the war on terror.
Consider those surprising endorsements by former Bush war hawks a possible coda for the war on terror as a major factor in American politics. In fact, for almost a decade and a half now, there have been signs suggesting that the denouement of that war might be at hand (though it never quite was). Those markers included the May 2011 lethal raid on the hideout of al Qaeda leader Osama bin Laden; President Barack Obama’s December 2011 authorization for the “final” withdrawal of American troops from Iraq (though a cadre of 2,500 military personnel are stationed there presently and another 900 are in neighboring Syria). In August 2021, 10 years after the killing of bin Laden, the U.S. did finally exit, however disastrously, from its lost war in Afghanistan. And in 2022, a U.S. drone strike killed bin Laden’s successor, Ayman al-Zawahiri.
The counterterrorism measures have had an impact on the American threat environment. As reported in the Department of Homeland Security’s 2024 Homeland Threat Assessment, in 2022, “Only one attack in the United States was conducted by an individual inspired by a foreign terrorist organization” such as al Qaeda or ISIS.
Terrorism Prosecutions
Notably, prosecutions of alleged international terrorists have declined precipitously since the Bush administration years (and some of the convictions then have been reversed or altered). In a 2009 report, the Justice Department stated that, “since September 11, 2001, the Department has charged 512 individuals with terrorism or terrorism-related crimes and convicted or obtained guilty pleas in 319 terrorism-related and anti-terrorism cases.” Soon after that, however, the decline began. TRAC, a database that monitors such cases, reported that, in October 2014, “[t]here were no prosecutions recorded that involved international terrorism.” By 2022, TRAC was reporting that the number of domestic terrorism prosecutions far outnumbered international terrorism cases, due in large part to the charges leveled against those involved in the January 6th insurrection. And that trend has only continued. This year, as TRAC indicated, “Overall, the data show that convictions of this type are down 28.6 percent from levels reported in 2019.”
And when it comes to terrorism prosecutions, something unthinkable not so long ago has now happened. Several judges have recently given early release or simply overturned cases involving individuals convicted and sentenced in jihadi-inspired terrorism cases during the first decade of the war on terror. In July 2024, Eastern District of Virginia Judge Leonie Brinkema threw out 3 of 10 charges against and overturned a conviction carrying a life sentence for Ali Al-Timimi, a U.S.-born computational biology scholar sentenced in 2004 for soliciting treason by inspiring his followers to commit acts of violence abroad to defend Islam. Judge Brinkema reversed her decision following a 2019 U.S. Supreme Court decision that found the term “crime of violence” to be “unconstitutionally vague.” Al-Timimi’s fate on the other counts is now on appeal. Having been released to home confinement after the onset of the Covid-19 pandemic, he now no longer faces a life sentence, though, as The Associated Press reports, he could potentially see “decades of prison time beyond the 15 years he already served.”
Nor was this Brinkema’s first reversal in a terrorism case. In 2018, she ordered the release of two prisoners convicted in what was known as the Virginia “Paintball Jihad” case following two Supreme Court rulings that held the charges in those cases to be similarly unconstitutionally vague.
If only in acting to restore a balance between punishment and the law, even when it comes to post-9/11 terrorism cases, Judges MacMahon and Brinkema had set an example for others.
And Judge Brinkema was not alone in reviewing and reversing post-9/11 terrorism convictions. This year, in two controversial cases, judges reassessed rulings they had once made, releasing from prison those they had sentenced in the war on terror years. Judge Colleen MacMahon granted “compassionate release” to James Cromitie, after six months earlier ordering the release of his three codefendants, commonly referred to collectively as the “Newburgh Four.” At sentencing, MacMahon had indicated her disagreement with the initial outcome of the case which led to 25-year sentences for the defendants convicted on charges that involved plotting to bomb synagogues and shoot down American planes with stinger missiles, describing their crime as that of “allegedly planting ‘bombs’ that were packed with inert explosives supplied by the FBI.” She further chastised the FBI in her compassionate release ruling, claiming, “Nothing about the crimes of conviction was of defendants’ own making. The FBI invented the conspiracy, identified the targets, manufactured the ordnance, federalized what would otherwise have been a state crime…, and picked the day for the ‘mission.’”
Four years earlier, in late 2019, a federal judge in Lodi, California overturned the conviction of Hamid Hayat, convicted in 2006 for attending a terrorist training camp in Pakistan and plotting an attack on this country, on the grounds that his counsel had ineffectively assisted him. Following that vacated conviction, the National Security Division at the Department of Justice reviewed the case and decided against filing new charges concluding “that the passage of time and the interests of justice counsel against resurrecting this 15-year-old case.” Having served 14 years of a 24-year sentence, Hayat was released.
The “passage of time” in these cases had led to a rethinking of the uses of justice and law after 9/11. Sadly enough, it has not resulted in sunsetting two of the major initiatives of the war on terror—the authorization for the initial military response to the 9/11 attacks that led to this country’s disastrous military engagements in Afghanistan and elsewhere, and the creation of the Guantánamo Bay Detention Facility.
The 2001 AUMF
One glaring element of the war on terror that has defied any sense of ending is the 2001 Authorization for the Use of Military Force, or AUMF, passed by Congress in the days just after 9/11, which initially green-lit the invasion of Afghanistan. It’s still on the books.
Unlike prior authorizations for war, the 2001 authorization included no temporal limits, no geographical boundaries, and no named enemy. It was a classic blank check for launching attacks anywhere in the name of the war on terror and has indeed been used to justify attacks in dozens of countries throughout the Middle East and Africa, including against “unspecified organizations and individuals connected to international terrorism,” as a Council on Foreign Relations overview reports. As Georgetown professor Rosa Brooks has pointed out, the temporal open-endedness of that AUMF defied international law and norms in which “a state’s right to respond to an armed attack is clearly subject to some temporal limitations; it does not last indefinitely.” Or at least it shouldn’t.
Year after year, Congress has indeed considered sunsetting that 2001 AUMF, as well as the 2002 authorization for war in Iraq. After all, the landscape of international terrorism has changed vastly since the post-9/11 years. While the threat hasn’t disappeared, it has been transfigured. As the 2024 Annual Threat Assessment issued by the Office of the Director of National Intelligence points out, “While al Qaeda has reached an operational nadir in Afghanistan and Pakistan and ISIS has suffered cascading leadership losses in Iraq and Syria, regional affiliates will continue to expand.”
The war in Gaza has, of course, further changed the terrorism landscape. According to FBI Director Chris Wray, Hamas’ October 7th attack on Israel took the threat of foreign terrorism to “a whole ‘nother level.”
However, the 2001 authorization for the war on terror that remains in place is not an apt authorization for the new brand of terrorism or for the war in Gaza. It has so far made no difference that a 2022 National Security Strategy issued by the Biden White House pledged “to work with the Congress to replace outdated authorizations for the use of military force with a narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats.” To date, no such narrowed framework has come into existence. And while Congress has repeatedly tried to sunset that piece of legislation, largely under the leadership of California Democratic Congresswoman Barbara Lee (the sole member of Congress who insightfully opposed it in 2001 on the grounds of its expansive overreach), such efforts have failed year after year after year. With Lee’s departure from office this coming January, the possibility of such a sunset will lose its most ardent proponent.
The Forever Prison
By far the most egregious relic of the war on terror is undoubtedly that forever war’s forever prison at Guantánamo Bay, Cuba. True, the number of detainees still held there—30—is down dramatically from the “roughly 780 detainees” in 2002. And 16 of those detainees have now been cleared for release (a review board having determined that they no longer pose a threat to the United States), while three remain in indefinite detention, and 11 others are in the military commissions system either facing charges or convicted. And true, President Joe Biden’s administration has made some progress in those commissions, arranging plea deals to resolve the cases of those who have been charged, as in that of two detainees who had been tortured and who pleaded guilty to charges related to terrorist bombings in Bali, Indonesia.
But whatever progress has been made during this administration, there have been two major setbacks.
First, early in the fall of 2023, the Biden administration reportedly arranged for the transfer of 11 Yemeni detainees to Oman. As The New York Times‘s Carol Rosenberg reported, thanks to Hamas’ October 7th attack on Israel, “A military cargo plane was already on the runway at Guantánamo Bay ready to airlift the group of Yemeni prisoners to Oman when the trip was called off.” Had that transfer occurred, the prison population would have dwindled to 19. But worries about a newly unstable Middle East left members of Congress uneasy and, according to Rosenberg, they expressed their concerns to the State Department and so succeeded in halting the transfer.
Twenty-three years later, there is arguably no greater reminder of both the need to put the war on terror behind us and an all-American inability to do so than the continued existence of Guantánamo.
In July, however, a momentous forward step did take place. Brigadier General Susan Escallier, the Pentagon’s Convening Authority for Guantánamo, the person in charge of the military commissions there, finally authorized a plea deal that had been in the works for years. It involved three of five defendants in that prison’s signature case, the prosecution of those accused of conspiring in and abetting the 9/11 attacks, including their alleged mastermind Khalid Sheikh Mohammed. The grim years of torture of those five codefendants at CIA “black sites” around the globe had long made it impossible to bring the case to court.
However, a deal was finally reached. As Chief Prosecutor Rear Admiral Aaron Rugh explained, “In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet.” Other parts of the agreement remain secret, but it still seemed like a huge step forward had been taken in bringing justice to the perpetrators of the 9/11 attacks. After endless pretrial hearings, filings, and motions—and no trial—there seemed at least to be a glimmer of light at the end of the tunnel. In the words of Sen. Dick Durbin (D-Ill.), the plea deal “was the best path forward to finality and justice.”
Unfortunately, only two days after the announced deal, Secretary of Defense Lloyd Austin mysteriously revoked it, issuing a two-page memorandum that managed to provide no explanation whatsoever for his decision.
Twenty-three years later, there is arguably no greater reminder of both the need to put the war on terror behind us and an all-American inability to do so than the continued existence of Guantánamo. There, at an estimated expense of more than $13 million per prisoner per year, judges and lawyers, many of whom favor plea deals, continue to play their roles as if a trial in the 9/11 case will ever be possible; as if the passage of time without resolution is an acceptable solution; and as if the example of indefinite detention, the use of torture, and a system that can’t adjudicate justice doesn’t continue to undermine the American promise of justice for all.
Moving Forward?
If only, in acting to restore a balance between punishment and the law, even when it comes to post-9/11 terrorism cases, Judges MacMahon and Brinkema had set an example for others. Certainly, at this truly late date, President Biden and Secretary of Defense Austin should have accepted—and should now reconsider and accept—the plea deal for those 9/11 co-defendants as a way of helping this country finally move past the 9/11 era and those endless, disastrous wars on terror. Isn’t it time to free the country up to focus on truly pressing national concerns instead of letting the aberrations of the past continue to haunt the present moment? Along these lines, perhaps it’s also the moment for Congress to sunset the 9/11 authorization for open-ended all-American global warfare.
Isn’t it truly time to move on from the war on terror’s lingering and painful legacy?
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How Guantanamo Set the Stage for the Kavanaugh Hearings
Justice derailed and the echoes of Gitmo
Oct 15, 2018
Amid the emotional hubbub over the predictable confirmation of Brett Kavanaugh, there has been a largely overlooked casualty: the American judiciary. It's not the end result alone -- his addition to the highest bench in the land where he will sit for life -- that promises to damage the country, but the unprofessional, procedurally irresponsible way his circus-like hearings were held that dealt a blow to the possibilities for justice in America, a blow from which it may prove hard to recover.
Senator Susan Collins acknowledged the damage the hearings wrought, even if she misunderstood the cause. Delivering her massively disappointing decision to vote yes on Kavanaugh, Collins reflected on what she saw as the passion that overrode the presumption of innocence and expressed "worry" that such behavior would lead to "a lack of public faith in the judiciary." Though wrong in blaming the Democrats for those passions, her conclusion was otherwise spot on. This confirmation has underscored and enhanced the fragility of justice in America, at least as a reflection of law, decency, honesty, transparency, and fairness.
Surprising as this derailment of justice might have seemed, it echoed (and may, in fact, have reflected) another long-unspooling twenty-first-century American degradation of justice. The proceedings created to try those terrorism suspects locked away in the offshore detention center at GuantanamoBay, Cuba, pivoted away from many of the country's legal and moral principles (a subject to which I'll return).
But as a prelude to understanding the harm that the Kavanaugh confirmation process caused, think for a moment about the fundamental premises underlying the Supreme Court and so the American judiciary. The Founding Fathers envisioned it as a body chaired by judges whose professional responsibility was, as Alexander Hamilton wrote in Federalist No. 78, to be "faithful guardians of the Constitution." Toward that end, the Court was to stand independent from politics and the other two branches of government. That idea of judicial independence was, in the oft-quoted words of Chief Justice William Rehnquist, "one of the crown jewels of our system of government."
It's apparent that both Kavanaugh and the committee before which he testified betrayed the goals of justice laid out in that foundational period by violating several major elements of judicial reasoning and procedure. In the process, they helped introduce Gitmo-style justice to the American legal system. Below are four ways in which the committee compromised longstanding aspects of American jurisprudence and justice.
A Quasi-Courtroom
Through it all, both supporters and opponents of Kavanaugh claimed that his congressional hearings did not constitute the equivalent of a courthouse. Not true. Throughout those proceedings, the Senate was, in fact, turned into a quasi-courthouse in which legislators could pick and choose just which kinds of procedures they cared to use, while conveniently banishing or ignoring others.
Think of those hearings as a conveniently watered-down version of a trial in which court procedures were invoked if they aided Kavanaugh, even as -- for anything that might have harmed him -- exceptions were made and regular procedures ignored. For example, Rachel Mitchell, the Arizona prosecutor appointed to question the judge and his accuser, Christine Blasey Ford, by the all-male Republicans on the commission eager to duck questioning a woman, would be a prosecutor in name only. Her time was curtailed to five minutes for each senator whose place she took and when it was Kavanaugh's turn, she was simply shoved aside by the same male senators eager to rant in his favor. Nor, of course, was there anything faintly resembling an impartial judge to oversee Mitchell's behavior (or anyone else's for that matter) or protect the witnesses, as there is in every courtroom in the United States. Such a mock courtroom both raised and violated not only the very idea of a fair trial but a fair process of any sort.
The Evidence, Missing in Action
One hoped-for result of a trial is the bringing of facts into the open so that justice can prevail. At no point in the Kavanaugh hearings was there even the semblance of an agreed upon set of facts, no less a coherent way to present them. Quite the opposite, they started and ended with a headlong dash away from the facts. Their undermining began in classic fashion when committee Republicans (in conjunction with the White House) agreed to withhold millions of documents relating to the judge and his work as a government lawyer in the White House during George W. Bush's presidency. In July 2001, he had been hired as an associate by White House Counsel Alberto Gonzales and, in 2003, he became assistant to the president and White House staff secretary where he may, among other things, have had a hand in the development of the Bush administration's war on terror policies.
And that was just how those hearings began. In addition, of course, when it came to Kavanaugh's seemingly grim record with women, the accusations of Deborah Ramirez and Julie Swetnick, publicly alleging inappropriate sexual behavior on his part, were ignored by the committee. Not a witness was called on the subject. Similarly, the bevy of statements that might have corroborated his exploits as a binge drinker in high school and college (as well as whether he ever blacked out from drunkenness) were tossed into the garbage pile of unexamined information.
A long overdue FBI investigation of charges against him, finally carried out at the request of Senator Jeff Flake (but under the watchful eye of the White House), proved a distinctly truncated affair that failed to seriously address the idea of establishing facts as a basis for decision-making. The FBI took the single week allotted to it, reportedly interviewed only nine witnesses, and issued a 46-page report. Compare this to a New Yorker magazine investigation of just the claims of Deborah Ramirez for which its journalists interviewed "between 50 and 100" people. As its co-author, award-winning investigative journalist Jane Mayer, commented, "The one thing I know from investigative reporting... the one thing that makes a difference is time. It takes a while to find the right people to talk to and to talk to them enough that you feel that you've gotten the truth from them and to find any kind of documentary evidence that you can. It just takes time." But time is precisely what the Judiciary and the White House did not allow.
And don't forget the importance of a perception of thoroughness and fairness. As former U.S. Attorney Preet Bharara put it, "[A]t the end of the day, if there is no further corroboration found with respect to these allegations, then Brett Kavanaugh gets confirmed to the bench. It will be better for him, it will be better for people's respect for the court, it will be better for people's respect of the process if they had done more rather than less..."
But a thorough investigation was obviously not what the powers-that-be wanted. As White House Counsel Don McGahn reportedly told the President, "a wide-ranging inquiry" into allegations about the judge's sexual misconduct would be "potentially disastrous."
Lack of Transparency
Consider the matter of transparency (or the lack of it) as a grim partner to the withholding, burying, or ignoring of evidence. Given a president who has himself dismissed transparency out of hand -- whether in terms of tax returns, election interference, or other subjects -- it should have been no surprise that the FBI's thoroughly inadequate report was not even made public. It was the equivalent of secret testimony. Nor are there evidently any plans to reveal its contents. That final act of secrecy only underscored the White House's defiance when it came to withholding the vast trove of documentation on Kavanaugh's time in the Bush White House. Senator Lindsey Graham caught the mood of the moment perfectly when he stated that he had no plans to read the FBI's report. It was obvious to him that the contents would be a foregone conclusion and that he could rely on others to tell him about it. Apparently, he already knew what he thought.
Lack of Accountability
How many times did we have to hear that the nominee should not be held accountable for what he did as a young man? But what about Kavanaugh's endless -- to put it politely -- misstatements of fact? As numerous media sites and tweets pointed out, he seemed to lie repeatedly during the hearings. "Senators on the Judiciary Committee had to know they were being lied to," wrote Eric Alterman of the Nation, "since the lies were continuously highlighted on Twitter." New York magazine's Jonathan Chait called the hearings a "farrago of evasions and outright lies." And Kavanaugh refused to give his stamp of approval to the FBI investigation, even as he was reportedly pursuing classmates behind the scenes to silence them about the allegations against him.
Had the committee cared to do anything about them, examples of his dissembling were abundantly obvious. He insisted, for instance, that he had not been an excessive drinker. Who cared that the New York Timespublished excerpts from a 1983 letter of his suggesting that the guests at a beach house where he and his friends were planning to party should "warn the neighbors that we're loud, obnoxious drunks with prolific pukers among us." So, too, Kavanaugh's college roommate, James Roche, attested to Kavanaugh's heavy drinking in those years. Yet another report mentioned Kavanaugh's involvement in passing around a girl for sex. He also insisted that he and Christine Blasey Ford, who accused him of sexually assaulting her, had not hung out in the same circles in high school, even though one of the friends he referred to on his list of "[brew]skis," dated her. And, of course, his on-the-spot definitions of the phrases "Devil's Triangle" and "boofed" in his high school yearbook as not relating to sex, seemingly obvious falsehoods, were never explored by the committee.
And so it went in those hearings, when it came to even a semblance of classic legal proceedings involving evidence, transparency, or accountability. Take, for instance, Kavanaugh's answers about his time in the Bush White House. He told the Judiciary Committee that he had not been part of any discussions about the detention policies of that administration, a category that included both Guantanamo and the administration's notorious "enhanced interrogation techniques." It's hard, however, to imagine him closing his eyes as memos that we know existed on detention, surveillance, and torture came across his desk on their way to his boss, White House Counsel Alberto Gonzales. In fact, as New Yorker correspondent Amy Davidson Sorkin has written, individuals then at the White House claim that Kavanaugh was in at least one heated debate over the way in which the Supreme Court would assess the administration's unprecedented detention policies.
As it happened, however, whenever they could, the committee's Republican majority chose never to hold him accountable for more or less anything and if, by chance, facts did come to light, despite multiple attempts to hide or suppress them, they were simply dismissed, often flippantly.
The Gitmo Template
For some of us, at least, this kind of denial of justice in America is nothing new. If you were following the war on terror all these years, such a wholesale willingness to compromise the very essence of justice has long seemed like a dangerous trend in clear view. Under the circumstances, it should have been no surprise that Brett Kavanaugh came out of the Bush White House and that the former president supported him vocally throughout the entire confirmation process.
In fact, Guantanamo could be said to have created the template for that quasi-courtroom in Washington and the various deviations from normal investigation, law, and procedure that it followed. For observers of that island prison, the Kavanaugh hearings ring an all-too-familiar bell. For nearly a decade and a half now, such quasi-courtrooms have been the essence of "justice" at that prison camp, as one sham hearing after another has been held. Periodic "reviews" of the very legitimacy of holding detainees in an offshore prison beyond the reach of American justice that had no analog in the American legal system -- Combatant Status Review Tribunals under George Bush and Periodic Review Boards under Barack Obama -- were introduced simply to justify the continued incarceration of prisoners there. The only goal of such hearings, it appeared, was to avoid the requirements of established protections on the U.S. mainland like due process.
Meanwhile, in Gitmo's military commissions, as in the Kavanaugh hearings, a central, impartial, independent authority was missing. They are overseen by judges without the power and command of those in the federal court system. Instead, as was true with the White House during the Kavanaugh hearings, the command influence of the Pentagon -- and at times the CIA -- has hovered over Gitmo's hearings from day one.
The credentials of the latest judge there, Marine Colonel Keith Parrella, named to the position in August, have only underscored aperpetual lack of regard for professional standards. Parrella, who has had no experience in capital cases, will be overseeing future hearings for the still-untried alleged co-conspirators of the September 11th attacks, who, 17 years later, face the death penalty. Nor has time been allotted, as the Miami Herald's Carol Rosenberg has pointed out, for the new judge to digest six years' worth of motions or 20,000 pages of transcripts. No matter. It's no more of a problem than not absorbing or dealing with the Kavanaugh evidence was to the White House or the Senate Judiciary Committee. Compromised professional standards and procedures, the calling card of Guantanamo's attempts to adjudicate justice, are now clearly making the move to the mainland.
Inside Gitmo's quasi-courtrooms, violations of longstanding procedure occur on a regular basis. For example, attorney-client privilege has been upended on numerous occasions over many years. Hidden government surveillance devices have been used to spy on detainee lawyers and their conversations with their clients, as in the case of Abd Al-Rahim al-Nashiri. So, too, the government urge to withhold witness testimony, apparent in the Kavanaugh hearings, echoes Guantanamo where the very idea of a fair trial has long seemed inconceivable to experts. As at the Judiciary Committee in recent weeks, excluded evidence has been a commonplace feature of Gitmo's military commissions. Lawyers for the detainees are regularly ignored in their attempts to present potentially crucial material, as in the case of Ammar al-Baluchi, especially when it relates to the torture and mistreatment of detainees while in custody.
Since President Trump took office, the military commissions system has only strengthened prohibitions that block the defendants' lawyers from access to witnesses and documents. This year, lawyers for the five detainees accused of conspiring in the attacks of 9/11 were informed that they had been prohibited from investigating the role that CIA officials and associates played in the brutal interrogation of their clients, testimony that is, they maintain, crucial to their defense strategies, particularly for the death penalty phase of the trial. In fact, at Gitmo, burying the facts has meant, in essence, burying prisoners alive. As defense attorney Joseph Margulies recently wrote about his client, Abu Zubaydah, who was waterboarded 83 times, the government has continually bypassed legal process, preferring to detain Zubaydah forever in silence rather than afford him a trial and the presentation of evidence.
As with all that repressed documentation on Kavanaugh's White House years, at Gitmo the government has regularly insisted on keeping facts secret. In this spirit, to keep the record clear of hard information about its torture practices, the CIA ordered the destruction of 92 tapes showing some of its grim interrogation sessions. (Even the 6,000-page Senate report on those interrogations has been classified and so largely kept from the public, while the Trump administration has tried to bury it further by rounding up existing copies from the agencies that had them in their possession.)
Without a proper judge, and minus valuable evidence, without any appetite for transparency or accountability, the Gitmo proceedings and the issues that haunt them have been reduced to a kind of invisibility. They are now sham events (just as the Kavanaugh hearings and investigation proved to be). Most of those paying attention have long since concluded that, as criminal defense attorney Joshua Dratel put it, "The reliability and legitimacy of verdicts is completely undermined by secret proceedings." So, too, may history judge Brett Kavanaugh's ascension to the bench in proceedings in which secrecy, as well as withheld or intentionally ignored evidence, prevailed.
The Constitution put a condition on the granting of lifetime positions to justices: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." While the good behavior of now Supreme Court Justice Brett Kavanaugh will forever be in question, more important may be the wound that his confirmation hearings inflicted on an American belief in the possibility of justice in this country.
Guantanamo's tainting of justice should, from early on, have served as a warning. Instead, it seems to have become a template for "justice" in the nation's capital. The 2007 Manual for Military Commissions ominously included in its preamble the prediction that "this Manual will have an historic impact for our military and our country."
And so, as the Kavanaugh confirmation process suggests, it did. It's hard to imagine a more telling event than the rise to the Supreme Court of a White House lawyer present at the creation of many of those Gitmo policies. Under the circumstances, it should hardly surprise anyone that the road to his confirmation displayed many of the legal aberrations launched during the Bush era. As the Gitmo story illustrates, Brett Kavanaugh's confirmation was not the first nail in the coffin of justice in America -- and sadly, it's unlikely to be the last.
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We Know Brett Kavanaugh Has Lied Already
So as an illegitimate administration goes to work attacking the credibility of a brave woman recounting her assault, let’s recognize the enormously cynical hypocrisy: The nominee they’re desperate to protect is a calculated liar who uses dishonesty to advance his own career
Sep 18, 2018
This nation is suffering a significant breakdown of civility, bipartisanship and ethical behavior. For the Trump administration and the Republican leaders who enable it, truth is no longer a cherished value. To them, lying seems to be part of the strategy, a cynical weapon to be used against their opponents.
This week, we are witnessing the full depth of that cynicism, as the White House and its supporters smear a woman who makes credible, significant accusations of sexual assault against Supreme Court nominee Brett Kavanaugh. At the same time, another fact has become clear: Kavanaugh himself has a casual relationship with the truth -- and in that, he fits right in with the way President Donald Trump and his party behave.
Lying under oath cannot and must not be rewarded with a seat on the nation's highest court.
At the White House event announcing Kavanaugh's nomination, the appellate judge offered a remark that seemed odd. Praising Trump, he said, "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination."
I personally found this hard to believe. How would Kavanaugh know that? Why would he be so sure and definitive about it? I did what we all do these days with the overwhelming list of lies coming out of this White House -- I figured that Republicans were all "in on it," that this comment would stand as just another obviously false spin in the process of getting another illegitimate seat on the Supreme Court for a conservative judge. But it turns out this was only a glimpse into the nominee's disturbing willingness to avoid the truth.
In fact, there's clear evidence showing that Kavanaugh lied under oath during the 2006 confirmation hearing for his spot on the U.S. Court of Appeals for the D.C. Circuit. I should know: I was one of the senators on the Judiciary Committee who questioned him.
I asked Kavanaugh about his involvement as White House staff secretary in the highly controversial 2001 nomination of Charles Pickering Sr. to the 5th Circuit. Many of us were concerned about a 1994 hate crimes case in which Pickering decided that a 25-year-old, who had participated with two others in a cross burning, was deserving of a reduced sentence.
During the Senate's consideration of Pickering's nomination, we had also learned that the federal trial judge solicited and collected letters of support from lawyers who had appeared in his courtroom, some of whom had cases still pending before him. This was a clear breach of judicial ethics, so I asked Kavanaugh about it:
Sen. Russ Feingold: My first question is this. Did you know that Judge Pickering planned to solicit letters of support in this manner before he did so? And if not, when did you become aware that Judge Pickering had solicited these letters of support?
Brett Kavanaugh: The answer to the first question, Senator, is no. This was not one of the judicial nominees that I was primarily handling.
But newly released emails show that Kavanaugh appeared to be the primary person handling Pickering's nomination, at least by 2003, and was heavily involved in pushing for his confirmation as early as March 2002. There are emails showing that Kavanaugh coordinated meetings with and about Pickering; that he drafted remarks, letters to people on the Hill and at least one op-ed for then-White House Counsel Alberto Gonzales about Pickering; that he advised Gonzales on Pickering strategy; and much more.
One Department of Justice official even asked for Kavanaugh's "blessings and instructions" before calling the nominee.
Others may have been involved, but Kavanaugh played a decisive leadership role in managing Pickering's nomination and then lied to me about it.
In another example, Kavanaugh had worked to advance multiple controversial judicial nominations from President George W. Bush during a time when a Republican Senate staffer named Manuel Miranda accessed and downloaded thousands of computer files belonging to Democratic senators. Because Kavanaugh could have been in receipt of the stolen documents, he was grilled by senators of both parties on the matter at his first confirmation hearing in 2004 and he denied any involvement.
But emails released this year show that Kavanaugh received material from numerous emails, draft letters and memos laying out the legal arguments Democrats were going to make regarding Bush's judicial nominees, including talking points written by a staffer to Sen. Patrick Leahy (D-Vt.). One email even had the subject line "Spying" on it. Kavanaugh not only received that message, which mentioned a "mole," but forwarded it to Gonzales. Leahy asked Kavanaugh about this regrettable episode in the 2004 confirmation hearing, and Kavanaugh's responses were both unsatisfying and evasive.
Taking all his testimony together, we see a clear pattern emerge: Brett Kavanaugh has never appeared under oath before the U.S. Senate without lying.
As a onetime member of the Senate Judiciary Committee, I considered the truthfulness of judicial nominees as a non-negotiable quality. Lying under oath cannot and must not be rewarded with a seat on the nation's highest court, and lies cannot remain unchallenged.
So as an illegitimate administration goes to work attacking the credibility of a brave woman recounting her assault, let's recognize the enormously cynical hypocrisy: The nominee they're desperate to protect is a calculated liar who uses dishonesty to advance his own career. And any denial of these accusations by Kavanaugh before the committee must be viewed in the context of his multiple earlier lies under oath to that same committee.
This nomination can and must be withdrawn. Nominees to the U.S. Supreme Court must be held to a higher standard, and it is the job of determined senators to do just that.
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