The American Bear

› Florida Lawmakers Pass Bill To Speed Up Executions | Rhania Khalek

For a state with 24 death row exonerations under its belt (the highest in the country), you would think Florida might want to slow down its execution process to avoid putting innocent people to death. But Florida lawmakers are doing just the opposite

Late last month both the Florida House and Senate passed the “Timely Justice Act”, which Republican Gov. Rick Scott is expected to sign into law, according to Reuters.

Under Florida’s current process, the Governor signs and issues death warrants at his discretion. The Act would change this by setting up automatic deadlines for filings to speed up the appeals process. Once appeals are exhausted and clemency denied, the Governor would be forced to issue a death warrant within 30 days and an execution date within 180 days.

Floridians for Alternatives to the Death Penalty, or FADP, says 13 of the 405 inmates on death row in Florida fall within this category and would therefore be issued death warrants immediately. Another 80 prisoners have exhausted their appeals and are waiting on clemency hearings, making them vulnerable to immediately issued death warrants as well. That means that if the “kill them faster” Act is signed into law, the state of Florida could execute as many as 90 inmates within the first six months of its signing.

Proponents of the Act argue that the appeals process is too lengthy, costly and delays justice. Indeed, the process can take decades and cost millions but that is to ensure justice not delay it. After all, several Florida exonerees were on death row for over a decade before proving their innocence. One example is Juan Melendez, who spent 18 years on death row and lost three appeals in front of the Florida Supreme Court before his release. Had the “streamline murder” Act been in place at the time there’s a good chance Melendez and others like him would have been killed for crimes they did not commit.

If the state insists on taking someone’s life (a morally corrupt position to start with), shouldn’t it be 110 percent certain that they are guilty? And therein lies just one of the many, many problem with the death penalty; rarely does this kind of certainty exist. The state can always overturn a sentence if an inmate is later found innocent, but not if they’re already dead. Lethal injection is permanent.

Republican Senator Rob Bradley basically admitted that he doesn’t care if Florida puts innocent people to death, saying, “this is not about guilt or innocence, it’s about timely justice.” Apparently, convenience is more important than life-or-death justice. [continue]

› Maryland abolishes death penalty as governor signs bill into law | guardian.co.uk

Maryland has become the [latest] US state to abolish the death penalty.

Democratic governor Martin O’Malley signed the measure Thursday. Attending was former Maryland death row inmate Kirk Bloodsworth. He is the first person in the country freed because of DNA evidence after being convicted in a death penalty case.

Maryland is the 18th state to abolish the death penalty and the sixth state in as many years to do so.

The bill will not apply to the five men the state has on death row, but the governor can commute their sentences to life without parole. O’Malley has said he will consider them on a case-by-case basis.

The state’s last execution was in 2005.

› With Bradbury’s Appendix M Opinion and 7th Circuit Vance Decision, the Government Can Torture Any of Us | emptywheel

A few years ago, two contractors, Donald Vance and Nathan Ertel, sued Donald Rumsfeld and others for the torture they were subjected to at Camp Cropper after whistleblowing about Iraqi and US corruption.

The torture was, in large part, the “separation” permitted in Appendix M. As part of their case implicated Rummy personally, they described how, immediately after Congress passed the Detainee Treatment Act, Rummy invented Appendix M as a way to evade the law. At first, the 7th Circuit permitted their Bivens case to move forward. But then the circuit reviewed the decision en banc and dismissed the case. The two have appealed that decision; it is pending a cert decision at SCOTUS as we speak.

… [The] 7th Circuit opinion [in Vance and Ertel v. Rumsfeld] holds that Rummy specifically, and anyone who comes after him, is immune from suit for violating someone’s constitutional rights, up to and including illegal detention and torture. As Steve Vladeck and James Pfander said in an amicus brief on this case to SCOTUS,

The Seventh Circuit’s decision in this case contravenes nearly 300 years of established tradition, this Court’s well-settled precedents, and the United States’ international obligations under the CAT. Operating under the assumption that it was being asked to “create” a new cause of action, the en banc majority took the unprecedented step of conferring, in effect, absolute immunity from liability on U.S. officials who torture citizens abroad.

The opinion is bad enough. Now add in Bradbury’s still extant memo, which permits DOD to stick whatever torture techniques they want in Appendix M and have his sanction for it. The two together allow the government to continue to engage in torture with, as Vladeck puts it, absolute immunity, so long as it happens overseas.

Essential context: The Torture Memo Obama Never Rescinded by Jeff Kaye (I posted a blurb about this last night, but no one cared. You should.)

› Lawyer Seeks to Hold Bush Administration Accountable for Iraq War | We Meant Well

› Report: Dzhokhar Tsarnaev's repeated requests for a lawyer were ignored | Glenn Greenwald

“… if the LA Times report is accurate, it means that the Miranda delay as well as the denial of his right to a lawyer would have continued even longer had the federal magistrate not basically barged into the interrogation to advise him of his rights.”

The initial debate over the treatment of Dzhokhar Tsarnaev focused on whether he should be advised of his Miranda rights or whether the “public safety exception” justified delaying it. In the wake of news reports that he had been Mirandized and would be charged in a federal court, I credited the Obama DOJ for handling the case reasonably well thus far. As it turns out, though, Tsarnaev wasn’t Mirandized because the DOJ decided he should be. Instead, that happened only because a federal magistrate, on her own, scheduled a hospital-room hearing, interrupted the FBI’s interrogation which had been proceeding at that point for a full 16 hours, and advised him of his right to remain silent and appointed him a lawyer. Since then, Tsarnaev ceased answering the FBI’s questions.

But that controversy was merely about whether he would be advised of his Miranda rights. Now, the Los Angeles Times, almost in passing, reports something which, if true, would be a much more serious violation of core rights than delaying Miranda warnings - namely, that prior to the magistrate’s visit to his hospital room, Tsarnaev had repeatedly asked for a lawyer, but the FBI simply ignored those requests, instead allowing the interagency High Value Detainee Interrogation Group to continue to interrogate him alone.

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› Who is the Real Enemy of the State? | Gene Howington

You might be an enemy combatant if … Sen. Lindsey Graham (R – S.C.) says so.

This sounds like a bad joke, but it isn’t. The potential political misuse of the arbitrary “enemy combatant” status has been discussed here on many threads albeit usually in the form of using Executive abuse to illustrate that danger while Graham’s cavalier “suggestion” is clearly from the Legislative branch. In comments made by phone to the Washington Post’s Jennifer Rubin on Friday, April 19, Senator Graham said of the Boston bombers:

‘They were radicalized somewhere, somehow.’ Regardless of whether they are international or ‘homegrown,’ he said, ‘This is Exhibit A of why the homeland is the battlefield.’ Recalling Sen. Rand Paul’s filibuster, Graham noted that he took to the Senate floor specifically to object to Rand’s notion that ‘America is not the battlefield.’ Graham said to me, ‘It’s a battlefield because the terrorists think it is.’ Referring to Boston, he observed, ‘Here is what we’re up against,’ and added, ‘It sure would be nice to have a drone up there [to track the suspect.]‘ He also slammed the president’s policy of ‘leading from behind and criminalizing war.’”

That was not the end of Graham’s disturbing posturing.

Continuing his fear mongering rush to throw the Constitution under the bus, Graham took to Twitter.

If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.

— Lindsey Graham (@GrahamBlog) April 19, 2013“

So he can be what, Lindsey? What’s that word … entrenched evasion … no, no …

If the #Boston suspect has ties to overseas terror organizations he could be treasure trove ofinformation [sic].

— Lindsey Graham (@GrahamBlog) April 19, 2013“

Enhanced interrogation! That’s it. Most sane and ethical people still call that torture. Which is still against Federal law under 18 USC § 2340, § 2340A and § 2340B, and is in direct violation of the Constitution’s 8th Amendment. Ironically enough …

The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’

— Lindsey Graham (@GrahamBlog) April 19, 2013“

But we’ll be coming back to this, however, this does not mitigate the enormously hilarious blather you say next, Senator.

The Obama Administration needs to be contemplating these issues and should not rush into a bad decision.

— Lindsey Graham (@GrahamBlog) April 19, 2013“

Do you mean bad decisions like ignoring and violating the Constitution and Federal law, foregoing prosecution of domestic war criminals, and aiding and abetting said war criminals escape justice after the fact, Senator? Or are you talking more “mundane” bad decisions like letting you use the phone or Twitter without a minder to keep you from putting your feet in your mouth? Bad decisions seem to be Washington’s stock and trade in the post-9/11 pre- (some might say “post-”) martial law America.

He was joined in his anti-Constitutional posturing by New York State Senator Greg Ball (R) who twitted when he tweeted on Twitter:

So, scum bag #2 in custody. Who wouldn’t use torture on this punk to save more lives?

— Greg Ball (@ball4ny) April 20, 2013“

Charming.

Senator Graham’s Constitutionally bellicose comments and State Senator Ball’s quite frankly abhorrent and inhumane comments are Exhibit A illustrating the war against your Constitutional rights going on in Washington and in other realms of American politics. This “War on Your Freedoms” (c) ™ is openly being prosecuted by the ever expanding and unitary Executive with the aid of the Legislature. Under the NDAA (theNational Defense Authorization Act for Fiscal Year 2012, specifically § 1021 ), the Obama Administration has maintained the stance that the President has the power to detain and curtail the rights of anyone he decides is an “enemy combatant” – including U.S. Citizens found within the U.S. like Dzhokhar A. Tsarnaev, 19, a naturalized American citizen – as enemy combatants. This definition is important because it subjects alleged criminals to the Law of War. This mean they can face sanctions without the benefit of judicial review including indefinite detention without trial or charge, transfer to foreign jurisdictions or entities (a.k.a. extraordinary rendition where they ship you off to a foreign jurisdiction to be tortured), and military tribunals. In essence, the NDAA seeks to designate the United States as an active war zone in regards to allegations of terrorism, or support of terrorism, wherein our most cherished all while putting your basic Constitutional Rights subject to the President’s whim. Herein we see the inherent danger of the expanding police state. Although the Obama Administration insists that it “has a firm and publicly stated policy against using military detention for domestic captures or U.S. citizens. So whatever the (National Defense Authorization Act) may theoretically authorize or tolerate, it doesn’t affect this situation,” as summarized by Benjamin Wittes, senior fellow and research director in public law at the Brookings Institution, we can clearly see that such promises of restraint in using an overreaching Executive power is dependent entirely upon the President in question. The value of political promises made to the general citizenry of the United States is a number rapidly, not just approaching zero, but zooming right on past it into the realm of negative numbers. This blurs the line between criminal law and the Law of War in a manifestly unconstitutional way. [++]

› Dzhokhar Tsarnaev: The Big Issue Is Not Miranda, It’s Presentment | Marcy Wheeler

… What the government did by delaying presentment in [the cases of Faisal Shahzad and Manssor Arbabsiar] was to afford itself a 2 week period of oversight free interrogation. And there are at least hints — hints that, because both men ultimately plead out, we’ll never learn more about — that the interrogations used some of the same techniques we’re supposed to have left behind.

In only Arbabsiar’s case did the government need the confession elicited using these methods. Like Dzhokhar, Shahzad was caught in the act, with tens or hundreds of witnesses. Nevertheless, the government chose to infringe on the fundamental right to a lawyer, likely guessing it could get the accused to plead guilty and hide all this detail from the public.

Now the government no doubt would claim it needed to do this for intelligence purposes (indeed, the case of the UndieBomber, where they were never able to coerce his cooperation, even though his public defenders appear to have advised him to do so, and therefore had apparently unadmissible evidence against Anwar al-Awlaki may be why they did this), whether that purpose amounted to real intelligence or propaganda they could use internationally. But ultimately, this practice is corroding our legal system (and this approach will surely be adapted for other uses, such as hackers).

There are a lot of reasons why delaying reading Dzhokar his Miranda rights are wrong, ethically. But I’m not as worried about that as the possibility they’ll stash Dzhokar away for a couple of weeks without a lawyer or any oversight. And in any case, the Administration seems intent on developing both means of curtailing rights. [read]

› Dzhokhar Tsarnaev and Miranda Rights: The public safety exception and terrorism cases. | Emily Bazelon

… [In] October of 2010, Holder’s Justice Department took it upon itself to widen the exception to Miranda beyond the Supreme Court’s 1984 ruling. “Agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents,” stated a DoJ memo to the FBI that wasn’t disclosed at the time. Again, fine and good. But the memo continues, “there may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

Who gets to make this determination? The FBI, in consultation with DoJ, if possible. In other words, the police and the prosecutors, with no one to check their power.

The New York Times published the Justice Department’s memo in March 2011. The Supreme Court has yet to consider this hole the Obama administration has torn in Miranda. In fact, no court has, as far as I can tell.

And so the FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will. [++]

› What rights should Dzhokhar Tsarnaev get and why does it matter? | Glenn Greenwald

“Leave aside the fact that Dzhokhar Tsarnaev has been convicted of nothing and is thus entitled to a presumption of innocence. The reason to care what happens to him is because how he is treated creates precedent for what the US government is empowered to do, including to US citizens on US soil. When you cheer for the erosion of his rights, you’re cheering for the erosion of your own.”

Shortly before Dzhokhar Tsarnaev, an American citizen, was apprehended last night, GOP Sen. Lindsey Graham advocated on Twitter that the Boston Marathon bombing suspect be denied what most Americans think of as basic rights. “If captured,” Graham wrote, I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes.” Arguing that “if the Boston suspect has ties to overseas terror organizations he could be treasure trove of information”, Graham concluded: “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’”

Once Tsarnaev was arrested, President Obama strongly suggested that he would eventually be tried in court, which presumably means he will at some point have a lawyer (something that Graham, along with John McCain and Liz Cheney, last night opposed). But the Obama DOJ also announced that they intended to question him “extensively” - their word - before reading him his Miranda rights, as Graham advocated in the second and third tweets quoted above. And the DOJ said they intend to question him not just about matters relating to immediate threats to the public safety - are there other bombs set to go off? is there an accomplice on the loose preparing to kill? - but also, again in their words, “to gain critical intelligence”.

Graham’s tweets quickly created a firestorm of outrage among various Democrats, progressives, liberals and the like. They insisted that such actions would be radical and menacing, a serious threat to core Constitutional protections. I certainly shared those sentiments: the general concept that long-standing rights should be eroded in the name of Terrorism is indeed odious, and the specific attempt to abridge core constitutional liberties on US soil under that banner is self-evidently dangerous.

But while I shared the reaction of these Democrats to Graham’s decrees, it nonetheless really baffled me, as I quickly noted. This was true for several reasons.

First, the Obama administration has already rolled back Miranda rights for terrorism suspects captured on US soil. It did so two years ago with almost no controversy or even notice, including from many of those who so vocally condemned Graham’s Miranda tweets yesterday. In May, 2010, the New York Times’ Charlie Savage - under the headline “Holder Backs a Miranda Limit for Terror Suspects” - reported that “the Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.” Instead of going to Congress, the Obama DOJ, in March 2011, simply adopted their own rules that vested themselves with this power, as reported back then by Salon’s Justin Elliott (“Obama rolls back Miranda rights”),the Wall Street Journal (“Rights Are Curtailed for Terror Suspects”), the New York Times (“Delayed Miranda Warning Ordered for Terror Suspects”), and myself (“Miranda is Obama’s latest victim”).

essential read →

› Even Bipartisan Conventional Wisdom Report Says It Was Torture | Marcy Wheeler

The Constitution Project has released a major report on the government’s torture program. You can download the report here.

The report is important and comprehensive, but not without flaws. It took me a matter of minutes to find a number of errors, repetition of dangerous misinformation, and incomplete reporting. While I may lay out some of these problems at more length after the report has had its big publicity splash, suffice it to say the report tends to preference newspaper reporting over actual primary sources, and at times it appears completely unaware of what primary sources say.*

As such, the report represents a cautious, bipartisan, institutionalist view. Which is why its conclusion is so valuable. Because even this cautious, bipartisan, institutionalist report concludes the following (among other findings):

Finding #1

U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.

Finding #2

The nation’s most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some U.S. personnel on detainees in several theaters. Responsibility also falls on other government officials and certain military leaders.

Finding #3

There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

Finding #16

For detainee hunger strikers, DOD operating procedures called for practices and actions by medical professionals that were contrary to established medical and professional ethical standards, including improper coercive involuntary feedings early in the course of hunger strikes that, when resisted, were accomplished by physically forced nasogastric tube feedings of detainees who were completely restrained.

Finding #19

The high level of secrecy surrounding the rendition and torture of detainees since September 11 cannot continue to be justified on the basis of national security.

Finding #21

The Convention Against Torture requires each state party to “[c]riminalize all acts of torture, attempts to commit torture, or complicity or participation in torture,” and “proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The United States cannot be said to have complied with this requirement.

In short: it was torture, it was illegal, it was not valuable, and it still needs to be prosecuted. (And, among other findings implicating it directly, the Obama Administration needs to stop force feeding Gitmo detainees.)

And all that’s ignoring some of the more damning evidence out there.

Let’s see whether bipartisan convention wisdom serves its purported purpose, effecting change in cautious, institutionalist DC.

*I am admittedly biased on this front. I was within a day of being contracted to collect documents for this effort, but someone involved in the process deemed me — at a time when I was already loudly criticizing the Obama Administration for things they’ve done — too partisan for the project. Some of the documents I had already identified at that time are utterly absent from this report; in their place the report claims ignorance.

› US defense secretary pushes for overhaul of military sexual assault cases | guardian.co.uk

US defense secretary Chuck Hagel has recommended that Congress change military law so that commanders can no longer overturn convictions in military court for sexual assault and other major offences, he announced on Monday.

The proposed changes follow widespread outrage over the overturning of the conviction of a US air force officer found guilty of aggravated sexual assault, in a case which victims groups said was symptomatic of the military’s failure to address an “epidemic” of sexual assault. Lt Col James Wilkerson, of Aviano air base in Italy, was found guilty and sentenced to a year in prison, but his conviction was overturned by Lt General Craig Franklin, the 3rd air force commander, and he was quietly re-assigned.

Article 60 of the Uniform Code of Military Justice gives power to “convening authorities” or commanders to set aside a conviction or decrease punishment after a court-martial, a power that has come under increased scrutiny following the Wilkerson case. In a statement, Hagel said the proposal would strip the ability of a convening authority to dismiss the verdicts of a court martial, except for certain minor offences. The accused would still be able to appeal their cases.

Victims groups welcomed the proposed changes, but said that it fell short of the measures necessary to combat the “epidemic of sexual assault”.

In a statement, Nancy Parish, of Protect Our Defenders, said that while the changes would would stop commanders overturning convictions, they would still allow them to reduce sentences.

Parish said: “The Aviano case has shown the world that our military’s justice system is fundamentally flawed. Article 60 in the UCMJ is only one part of much larger fundamental problems. Today’s proposed changes from the Pentagon fall short of the necessary fixes to end the epidemic of sexual assault in the military.”

Parish said that they have never disputed that incidences like the Aviano case were rare, and said: “But, we have always contended that the more insidious problem is that convening authorities can unilaterally lessen sentences and today’s announcement does not change this.”

She said that, under the current proposal, “In the Aviano case, rather than setting Lt Col Wilkerson’s sexual assault conviction aside Lt General Franklin could have simply reduced the sentence to no punishment.”

Anu Bhagwati, executive director of Service Women’s Action Network (Swan) and a former marine corps captain, said: “In light of the perceived travesty of justice in the recent Aviano case, Swan is encouraged by secretary Hagel’s proposals to reform Article 60. The Department of Defense has effectively acknowledged that commanders currently have undue influence on post-trial decision-making.”

Bhagwati said: “However, post-trial review is only one component of the command-driven system that currently governs how military crimes are handled. Unless pre-trial decision-making around investigation and prosecution of offences is also removed from the hands of commanders and given to impartial prosecutors, military criminal justice will remain a lesser form of justice, both for victims and defendants.” [++]