State Department’s Sean McCormack Defends Bush Administration’s Human Rights Record

State Department spokesman Sean McCormack extolled the human rights record of the Bush administration at a press briefing yesterday. McCormack’s statement came in response to a question about whether the United States would press Libya to release Fathi al-Jahmi, who has been imprisoned for four years without charges and whose health is so poor he could die if he continues to go without medical treatment [emphasis in original]:

Today, Secretary of State Condoleezza Rice met with Libyan leader Moamer Gadhafi’s son, Seif al-Islam. In a press briefing yesterday leading up to the meeting, reporters pressed State Dept. spokesperson Sean McCormack on whether Rice would urge Libya to release Libyan activist Fathi al-Jahmi, a political prisoner who is gravely ill.

McCormack offered a defensive response: “I have to make it very clear we are concerned not only about Mr. al-Jahmi’s case, but other human rights cases around the world.” McCormack also claimed that President Bush’s human rights record could perhaps be the best in American history:

McCORMACK: And — and one thing I do take exception to is the idea that somehow we are not attentive to pushing the issue of human rights, whether it’s in Libya or any place else around the world. I don’t think — I would put the record of this administration up against any American administration or any other government around the world in terms of promoting universal human rights and pushing for human rights.

At any time, this would be an extraordinary claim, but even more so now, coming the same day that a federal judge ruled that the Bush administration did not have sufficient evidence to hold five Algerian detainees who have been imprisoned at Guantanamo for seven years without charge or trial, and ordered their release.

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as “a classified document from an unnamed source” for its central claim against the men, with little way to measure credibility.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” Judge Leon said. He urged the government not to appeal and said the men should be released “forthwith.”

The habeas corpus case was an important test of the administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with hardened fighters and terrorist commanders.

The judge also ruled that a sixth Algerian man was being lawfully detained because he was a facilitator for Al Qaeda, arranging travel for others to fight the United States, and planned to become a fighter himself.

The six men are among a group of Guantánamo inmates who won a 5-to-4 Supreme Court ruling in June that the detainees had a constitutional right to seek their release in federal court. The decision said a 2006 law unconstitutionally stripped them of their right to contest their imprisonment in habeas corpus lawsuits.

A weeklong hearing for the Algerians, in which all of the evidence was heard in proceedings that were closed to the public, was the first in which the Justice Department was required to present its full justification for holding specific detainees since the Supreme Court ruling.

Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.

Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

There is more:

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released.  “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of Bensayah.  He said he was appealing to those leaders “to end this process” for the five.

Andy McCarthy has his usual clueless commentary:

We don’t know what the evidence was because virtually the entire proceeding was classified and thus sealed. The Times report says Judge Leon found ”the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.”  Why not?  What was the standard of proof by which the court found evidence that was good enough to detain was now not good enough to detain?  We don’t know.  …

Earth to Andy: Uh, that’s the way Gitmo has been run from the start. Everything — from the detainees’ identities to what interrogation techniques are and were used on them to what if anything they had been charged with to the evidence against them — has been “classified and thus sealed” from the day Gitmo opened. Imagine this: Even detainees could not know the evidence against them. Hint: That’s what habeus corpus is about, Andy.

But Andy McCarthy is only just realizing that we don’t know what the evidence is for holding hundreds of detainees at Guantanamo because the government says the evidence is “classified”?

At least it’s beginning to dawn on McCarthy that it was a mistake to give blind credence to the government’s unilateral conclusions on who is or is not a national security threat [emphasis mine]:

It seems pretty clear that the Bush administration did not help matters here.  Nearly seven years ago, the President publicly claimed the Algerians were planning a bomb attack on the U.S. embassy in Sarajevo.  Last month, however, the Justice Department suddenly informed the Court that it was no longer relying on that information.  We’ve seen this sort of thing happen too many times over the last seven years, and the effect can only be to reduce the confidence of the court and the public that the government is in command of the relevant facts and can be trusted to make thoughtful decisions.

Er, maybe not so much:

All that said, though, Judge Leon concluded that “[t]o rest [combatant detention] on so thin a reed would be inconsistent with this court’s obligation.”  That is puzzling.  There is nothing in the training of a judge that makes him an expert in military matters.  In our system of divided government, the question of who is an enemy combatant should be committed to the executive brach [sic] — specifically, to the military professionals waging the war. …

This is truly schizophrenic. By McCarthy’s own admission, the Bush administration’s missteps over the last seven years have shown that it is not “in command of the relevant facts,” and that the public cannot trust the government to “make thoughtful decisions.” But yet we should “commit” the “question of who is an enemy combatant” to the president, and “specifically… to the military professionals waging the war.”
McCarthy continues:

… If there is any evidence supporting the military’s wartime decision to detain (and, to reiterate, Judge Leon said there was sufficient evidence to hold these men for intelligence purposes), the court should defer to the military judgment.

I’m not a lawyer, but I would think there is a legal distinction between the kind of evidence that’s required to hold someone for questioning, and the kind of evidence that’s required to hold someone, without charges or any due process, for seven years — and counting.

The larger point, of course, is that we should not be giving this kind of blind trust to the president, or to any one branch of government, to begin with. The Economist‘s blog, Democracy in America, notes that this is precisely the lesson that Judge Leon learned and (one hopes) took to heart, given that it was the Supreme Court’s rejection of his decision to deny habeus corpus appeal to Gitmo detainees that put this habeus corpus proceeding in his courtroom:

… Last seen denying Guantánamo Bay inmates the right to challenge their detainments, Mr Leon was over-ruled by the Supreme Court. Today Mr Leon ruled that five of six detainees exercising their restored habeas corpus rights were detained without merit. He ordered the men freed “forthwith”. Demonstrating that justice remains free of fear or favor, Mr Leon then asked the government to waive its right to appeal.

The lesson, and hopefully all those who might need it are already seated on the federal bench, is that habeas is the foundation of justice precisely because the executive branch should never be trusted. These men spent nearly seven years imprisoned (and were mentioned during George Bush’s 2002 state-of-the-union address) based on the strength of a rumour. Since that time, the administration blocked their release with iterative ridiculous legal arguments, including the one Judge Leon originally upheld. At least he finally faced up to the truth. …

Andy McCarthy next? I’m not holding my breath.

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Tags: Afghanistan, Algerian detainees, Bush administration, Guantanamo, habeus corpus, Human Rights, Judge Richard J. Leon, Justice Department, Supreme Court

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