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American justice was never unstained, but until the Bush administration, she still had some semblance of virtue. Then came eight years of increasing surrealism, degradation, and downright atrocities. Some of us had thought that the new president would pull American Justice out of the muck and help her clean some of the mud off her chiton. Well, she's still not standing upright, and may never be.Binyam Mohammed's case is by turns infuriating, heartbreaking, and peculiar. The Ethiopian-born British resident was first arrested in Pakistan on a visa violation in 2002. He was sent to be tortured in Pakistan, Morocco, and Guantanamo, where he has been held since 2004. His nightmarish journey took him through such "black sites" as the "Dark Prison", where he was kept chained to a wall in total darkness, while tapes of rap music and screaming were played at ear-splitting volume 24 hours a day, and other prisoners could be heard going mad.
From what battlefield was Mohammed taken? What desparate acts of violence had he committed, to necessitate his Extraordinary Rendition?
According to his military-appointed counsel, Lieutenant Colonel Yvonne Bradley, he was taken from the Karachi airport, where he was waiting to board a plane to the U.K. And the act that got him arrested? Visiting a satiric website and viewing an article by Barbara Ehrenriech, Peter Biskind, and scientist Michio Kaku, that gave obviously joking instructions on how to build an H-Bomb. These included putting liquid uranium in a bucket, swinging it overhead for 45 minutes, skimming the results like cream, and keeping buckets of uranium in separate corners of the room, lest they reach critical mass.
Mohammed confessed to reading this article after a week of hanging by his wrists. It was the centerpiece of the government case that he was trying to build a dirty bomb. He was also connected to Jose Padilla and three other defendants, by Abu Zubaydah, who later said he lied under torture. Zubaydah is one of the Guantanamo prisoners the CIA has admitted waterboarding.
Charges against Mohammed were nullified when the Supreme Court struck down the first Military Commissions act. Additionally, his prosecutor, Lt. Colonel Darrel Vandeveld, resigned for reasons of conscience, stating that "the U.S. government was not providing defense lawyers with the evidence it had against their clients, including exculpatory information – material considered helpful to the defense." He was the fourth prosecutor to resign. Though there was a chance that the government might retry Mohammed under the new Military Commissions Act, the problem remains that the use of torture has tainted the statements made by and against him, as it has tainted many other cases.
Binyam Mohammed is still at Guantanamo, even though charges against him have been dropped. He is therefore on hunger-strike in protest, and being force-fed twice a day, an abusive act in itself. His military counsel, Colonel Bradley, met with UK Foreign Secretary David Milliband about Mohammed's imminent release.
Separate from the sub-rosa miseries inflicted on him by the American legal system, Mohammed has a new reason to disbelieve in American justice: the State Secrets Act. Is Mohammed suing the United States for kidnapping and mutilating him? No. He is suing the airline company that transported him to be tortured, a subsidiary of Boeing called Jeppesen Dataplan. The United States Justice Department, under George W. Bush, stepped in to get the lawsuit thrown out, on the grounds that state secrets would be revealed in the course of the case, jeopardizing national security. Rather than redacting names and locations, rather than allowing the judge to view and rule on the sensitive material, the Bush Department of Justice sought to have the entire suit never see the light of day.
It doesn't take much imagination to realize that the invoking the State Secrets act allows any program to remain unexamined under the rubric of national security.
As Glenn Greenwald notes in Salon:
"the alternative to Bush's lawsuit-killing use of the privilege is not to waive the privilege entirely. Everyone -- including the ACLU -- acknowledges that the Government should have the right to assert the State Secrets privilege on a document-by-document basis. The controversy was and is only about one thing: the use of the privilege to compel the dismissal of entire lawsuits in advance -- in other words, to convert the State Secrets privilege from what it always was (a focused evidentiary privilege) to what it was never intended to be (full-scale immunity for government lawbreakers from all judicial accountability)."
So Monday, all parties--Boing, DOJ lawyers, and lawyers for Binyam Mohammed, met once again in court. The judge overseeing the case asked lawyers from the brand-new Obama Department of Justice, expectantly, almost winking, whether "anything had changed?" since the last time they had been at court. When they replied in the negative, she was incredulous. Did they want to continue the Bush policy of invoking State Secrets to get Mohammed's lawsuit dismissed?
Yes they did. Nothing had changed. Nothing at all. Not for Binyam Mohammed.
There is no doubt there are indeed changes in policy from the brutally stupid Bush administration to the Obama administration. President Obama has ordered holds and reviews on all cases being prosecuted against the prisoners at Guantanamo, and the new Attorney General has stated unequivocally that waterboarding is torture, and that torture will no longer be tolerated. The administration is also very new, and negotiating the twists, turns, divided loyalties and delicate politics that any new leadership must confront. Perhaps, as some defenders, or optimists, or apologists, suggest, Obama can't decree massive change all at once, and will incrementally right the many wrongs, even prosecute the wrongdoers.
But to deny kidnapped, tortured, Binyam Mohammed his lawsuit is one injustice, one towering injustice, that will be committed in Obama's name, right now. Is it worth it to him to have this indelible stain on his name, to protect the names of Bush administration officials, in the interest of "looking forward?"
Cross-posted at Rumproast.
