The Obama Justice Department & Guantanamo: Combining Odysseus with the Cyclops


Moundsville, W. Va.: West Virginia State Penitentiary (1866-1995) now a tourist attraction 8/4/12

         I want to support Barrack Obama’s re-election.

          He has done more for the environment with less tools than any of his predecessors.  In the face of agency appropriations meant to cripple government services, he has maintained and even improved core services as others frayed or disappeared.

           His efforts – totally unrewarded inside and outside his party – to reach bipartisan approaches to fiscal stimulus, health care, the budget and defense have an air of nobility in their futility.

           Even in his dogged insistence on repeating Bill Clinton’s first-term mistakes – focusing on healthcare rather than jobs, reappointing a Republican Fed Chair – one can see a remarkable resolve to consolidate public opinion behind major social change.

 Guantanamo Tribunals

           I acknowledge all that, even applaud some of it.  But then I read something about Obama’s administration of justice, and my enthusiasm for him dies.

           Consider Lyle Denniston’s Aug. 20 post on the SCOTUSblog.[1]  He describes a hearing held by US District Court Judge Royce Lambeth on Aug. 17 on access by lawyers to their clients imprisoned by the US government in Cuba.

           “‘Counsel visits [to Guantanamo] are a burden on the resources and manpower of Guantanamo Bay to provide accommodations for counsel and on security personnel to ensure the safety of counsel and their good behavior as well,” Justice Department attorney James J. Gilligan said at the hearing. In turn, one of the lawyers for the detainees, New York attorney Rebecca Briggs, contended that “these limitations [on counsel’s access] that are being added in footnotes [in government access rules] just highlight the fact that their assurances to yield their discretion responsibly cannot be taken at face value, unfortunately.”

          There is a core legal dispute between the two sides, apart from their mutual suspicions about each other’s motives. At the heart of the legal debate is the meaning of the Supreme Court’s first major ruling in a war-on-terrorism case: Hamdi v. Rumsfeld, in 2004. The detainees’ attorneys contend that the ruling assured those being held by the military as terrorism suspects that they have a continuing right to challenge their detention, and with that comes a right to ongoing access to a lawyer. The Justice Department reads Hamdi entirely differently, contending — as its lawyer did Friday — that the Court simply assumed that detainees had a right to a lawyer “because the government was voluntarily providing the access that Hamdi said he required, and left to another day the legal issue” of whether he had such a right.

 Civil Liberties & Today’s Prisoners

           For 900 years, our justice system has rested on habeas corpus, a prisoner’s right to challenge the legality of his captivity.  The right to counsel began to emerge 375 years ago.  How could our government be arguing these points in 2012?

           The Justice Department’s argument is the tip of an iceberg of deceit and duplicity surrounding treatment of prisoners at Guantanamo.  It signals the continuity of the Bush-Obama policies on civil liberties.  As many have noted for four hundred years, what can be done to unsympathetic defendants probably will be done unto us.  ‘First they came….

 Justice in Merrie Olde England

           The Bush-Obama policies on trying the Guantanamo prisoners return us to the time before the trial of Charles I in December 1648.  The British civil liberties lawyer, Geoffrey Robertson QC wrote in his fine book, The Tyrannicide Brief (2005),

Treason trials might be preceded by torture to extract confessions and defendants were not allowed to have counsel (on the pretext that the judge could be relied upon to look after their interests).[2]

           What was true of treason trials was true for criminal proceedings in generally.  That the process created for Charles I became the norm is a wonder.

Charles I was brought to trial at a time when defendants had no rights other than to be tried quickly (cases had to conclude within the day) and were not permitted to give evidence on oath, to cross-examine witnesses or to have the assistance of counsel (other than by leave of the court, and then only to argue points of law)…. “Prisoners at the bar” might ask the judge to put questions to prosecution witnesses: they could interject and make a final speech but that was their lot.[3]

 All of which will sound familiar to those following the Guantanamo military tribunals.

 Tribunals and Cover Ups

           This perversion has its roots, of course, in the torture and inhumane practises inflicted on inmates.  Hence, the tribunals have inconsistent missions:  to cover up rendition, isolation, torture, blood feuds, etc., whilst using their fruits to gage guilt and punishment.

           (One wonders whether men held under such conditions for up to a decade can be competent to aid in their defenses conducted in a language they don’t understand.)

           The imperative to hide the consequences of Jack Bauer justice have another disastrous effect on our inheritance from the Tyrannicides.

Their choice of an open trial procedure was not merely to conform with the common law and to deter future tyrants: it was to allow the world to witness the righteousness of their cause, and to let history judge the strength of their case.[4]

 The US can’t hold open trials because the righteousness of its cause – in Iraq since 1989, in Afghanistan since 1979, in Iran since 1954… – is in question and, even if just, its means haven’t been.

           Last week’s hearing shows the Obama Administration has abandoned any effort to improve on the Bush era’s treatment of prisoners, along with its worthy, if half-hearted, attempt to bring the prisoners and trials into the American justice system.

 Playing Simultaneously Odysseus & the Cyclops

           The impossible dilemmas posed by the Guantanamo prisoners have led, I believe, to the Obama Administration’s reliance on drones and assassination squads.  Dead men don’t need defense lawyers – pace the Innocence Project.

           But this policy has consequences we Americans mostly ignore:

 • Leave aside the inconsistencies with Anglo-American law of the Judge Roy Bean notion of being posse, judge and executioner.

• Pooh-Pooh the rot from the head this causes in our domestic justice system

• Ignore the collateral casualties inevitable from surgical strikes.  And,

• Dismiss the global political implications of staging raids wherever we choose.

           What we’ve accomplished with this program – as most field generals and FBI agents understand – is the killing of our best potential intelligence sources, our best chances for understanding our enemies – assuming they are our foes.  We are like an Aurora psychopath who, after poking his eyes out. spins about firing his assault rifle with extra-capacity magazines until he falls from dizziness.

           All this is so unnecessary, so futile.

 Poison Fruit from Invasive Trees

           One of the great metaphors of criminal law denies the state the use of evidence it obtained improperly – through the use of coercion, a search not authorised by a warrant, etc.  The state mayn’t use the fruit from a poisoned tree.

          The Obama Administration and its erstwhile Attorney General have led us into the logical conclusion of a defense of the indefensible.  The fruit has proved poisonous, the tree invasive.  And, the solution is not to root them out but to leave them to expand whilst trying a simpler, equally futile and reprehensible, solution.

 Obama & Judicial Appointments

           The single most important reason to support Obama’s candidacy is the hope that he will be able to appoint good judges to the federal system.  The Republican appointments blocks have kept him from diluting the hold the Reagan-BushI-BushII judges hold on the federal judiciary.

           For instance, he has not succeeded in appointing a single judge to the important US Court of Appeals for the DC Circuit which hears most challenges to federal regulations.  So it continues to be dominated by its chief judge, Jesse Helms’ former thug, David B. Sentelle.

           Given his performance over the past three and a half years, the notion of Eric Holder as AG until a vacancy comes up on the Supreme Court leaves me less than excited.


          There can be no question after this already too long campaign that Obama is the better man and will continue to be a better president that Romney was a governor.

           But, oh, the opportunities he’s missed! 



           1.  Lyle Denniston, Judge questions new curb on detainees’ lawyers, SCOTUSblog (Aug. 20, 2012, 6:21 PM),

           2.  Geoffrey Robertson, The Tyrannicide Brief [2005] (London: Vintage Books, 2006), p. 73.

           3.  Id., pp. 151-52.

           4.  Id., pp. 132-33.