Total Information Awareness

It is after Labor Day, so it would behoove us to be on the lookout for the new "products" to be unveiled by the White House, at least according to the marketing plan once revealed by Andy Card in a moment of unintentional candor. With this timetable in mind, it is with a cynical eye that I viewed today's bombshell announcement by President Bush regarding the latest twist in World War Terror IV (an announcement that the White House was so eager to publicize that it wanted to pre-empt daytime TV's favorites).

This Fall's fashion craze features the President in a fetching navy blue suit admitting, for the first time, of the existence of the now infamous CIA secret prisons ("black sites"). These black sites were used over the past four-plus years to house the highest level al-Qaeda captives (including 9/11 mastermind Khalid Sheikh Mohammed). Bush further declared that all the detainees previously secured in such facilities shall be treated to an all expense paid trip to the plush, tropical compound down in Guantanamo Bay.

At first glance, this announcement could be viewed as an unequivocal positive: at the very least, the Bush administration seems to be moving to normalize its terrorist detention policies that have thus far skirted very near the employ of an unprecedented level of extra-judicial/unconstitutional measures. These unsavory tactics have tarnished our image in the world, and cost us in the battle for hearts and minds - so we're moving in the right direction. Right? John Kerry went for the surface level analysis with this statement:

Today the administration finally recognized that the protections of the Geneva Convention should be applied to prisoners in order to restore our moral authority and best protect American troops.

But, as usual, there's a catch. You didn't expect it would be that easy did you? The Bush administration is not necessarily embracing their quaint side by endorsing the full parameters of the Geneva Conventions - as Kerry would have it. On the contrary, they are forcing the hands of those that have been most vocal in their advocacy of the humane treatment of prisoners and the rule of law, in an effort to formalize the rejection of Geneva. Allow me to lay out some background information needed to appreciate the subterfuge.

In a sense, KSM and the other al-Qaeda prisoners have been lurking in a form of legal limbo that has turned them radioactive over time. Their legal radioactivity stems from the fact that KSM and others were tortured (or at least abused) and detained for long periods of time without access to any of the protections accorded by Geneva or any other legal regime. Treating detainees in such a manner in the initial stages of the process creates significant hurdles that will be encountered when attempting to prosecute them in an actual court or tribunal down the road. I summed up some of these complications in a prior post:

[There are] evidentiary rules that prohibit using information and evidence obtained from unconstitutional searches...even if the information is probative (though there are certain exceptions). Evidence obtained in such a manner is deemed "fruit of the poisonous tree," and thus barred from admission in court (also see "the exclusionary rule"). As you can imagine, confessions and other statements made under the duress of torture and/or abuse, especially in unconstitutional detention centers, are likely inadmissible, as is any other evidence gained as a result of such confessions.

That's a lot of evidence that can't be used. So, by bringing KSM and the other radioactive prisoners to Gitmo, the Bush administration is seeking to contaminate the whole facility - and then come to the rescue with a handy, pre-existing clean-up kit. Spencer Ackerman honed in on the dilemma created by Bush's September surprise:

All Guantanamo detainees, according to the Supreme Court, have the right to at least some access to the U.S. legal system. KSM, therefore, will pose an interesting test: Should his probable trial reflect the legal doctrine of the "fruit of the poisoned tree"--that is, will evidence obtained through torture be admissible in the military tribunals or not? McCain's Detainee Treatment Act of 2005 says "of course not!" but Bush indicated in his infamous "signing statement" that he thinks he has the right to torture whoever he pleases. Now Congress will face a very unpleasant question: Unless it rejiggers the military tribunals to bless torture/coercion, KSM and other Al Qaeda figures might in fact be set free by the courts. Is Bush so cynical as to force Congress into the odious position of either setting the stage for murderers to walk out of Gitmo or blessing torture? Of course he is!

The Associated Press article linked to above sets out some of the legal/rhetorical maneuvering under way that reflects this reality [emphasis mine]:

Bush also laid out his proposal for how trials of such key suspected terrorists — those transferred to Guantanamo and already there — should be conducted, which must be approved by Congress. Bush's original plan for the type of military trials used in the aftermath of World War II was struck down in June by the Supreme Court, which said the tribunals would violate U.S. and international law. [...]

Aides said the legislation being introduced on Bush's behalf later Wednesday on Capitol Hill insists on provisions covering military tribunals that would permit evidence to be withheld from a defendant if necessary to protect classified information.

As part of the package, Bush asked Congress to shield from prosecution or lawsuits federal personnel who handle terrorist suspects. [...]

Republican Sens. John McCain and Lindsey Graham have drafted a rival proposal. It would guarantee certain legal rights to defendants, including access to all evidence used against them.

"I think it's important that we stand by 200 years of legal precedents concerning classified information because the defendant should have a right to know what evidence is being used," said McCain, R-Ariz.

Administration officials also have said that allowing coerced testimony in some cases may be necessary, while McCain said the committee bill would ban it entirely.

You know, I really do try to fight the temptation to give in to cynicism in all matters having to do with the Bush administration, but they don't exactly give me a lot to work with. In the present case, the Bush administration is using an impending domestic election to railroad through a bill that would radically alter notions of due process and the rule of law that have served this country so well over its 200-plus year existence (both in terms of improving the legal system we employ, and in making us an exemplar to the world).

At the same time, Karl Rove is licking his chops at the prospect of being able to paint Democrats that may oppose the legislation on principle as so weak on terror that they would actually endorse a legal system that would allow for the release of KSM and other al-Qaeda operatives. "The Dems won't keep you safe; they don't understand the post-9/11 world, etc..."

In fairness, this is not exactly a black and white issue - at least with respect to those prisoners already detained and treated in such a way. Nobody wants to see KSM and his cohorts walk. However, once the damage of torture and extended extra-judicial detention has occurred, there is no easy way to reconcile the legal system to accommodate such prisoners in a manner that does not lead to a bad result in one way or another. Either we change the rules to allow for that kind of treatment, or we recognize that such treatment cannot be permissible and throw out the tainted evidence - and likely exonerate the accused (or we try to find a narrow exception that may thread the needle in the present example, but leave the regular rules intact going forward - call this the deus ex lex solution).

But it is precisely because of the elusiveness of the deus ex lex solution, and becauase of the far reaching ramifications that will result from any decision, that a calm, thorough, measured and protracted discussion and debate is required. The Bush administration, however, views this as a useful electoral tool to bolster its prospects in November by painting opponents as weak. Synergistically, or in the alternative, the Bush team can use the looming election itself as a cudgel to silence the debate on this topic in order to achieve its desired legislative result: "Vote for this, or else." So the White House will fast track a vote regardless - knowing that opponents will be damned either way. As Bush said today, "Passing this legislation ought to be the top priority."

This is an utterly unserious way to govern and make paradigm shifting decisions on extremely complex matters. Kevin Drum really nailed it when he said this:

This is, by a long measure, the most underreported aspect of the Bush administration's war on terror. Not that they're pursuing the wrong strategy — though they are — but that in the end they don't really care that much one way or the other. Winning the war has always been secondary to winning elections.

Heh.