Out of sight

That's me for a while -- I'm performing one of the least enjoyable tasks of the legal profession, the writing of the Losing Reply Brief. (But why file this non-required brief if it's going to lose? For the same reason that I'm pursuing the appeal in the first place: because the client wants me to.) There was no course in law school on how to make your bad arguments fall on the non-sanctions side of the frivolity line ...

Persons interested in this blog's typical preoccupations will want to examine Scott Horton's blog post on Obama's latest smoke-and-mirrors trick, the abolition of (the term) "enemy combatants."

The Justice Department’s posture is much less than I was hoping for, but the legal turf it stakes out strikes me as potentially palatable. I am still skeptical. These concepts might be wielded in an abusive way, as the Bush “enemy combatant” concept clearly was. It will be important to monitor the Obama Administration’s interagency review process and see how these new concepts are actually applied to the detainees. Give the positively abysmal track-record of the Justice Department, a heavy measure of skepticism is well justified.

Longer but worthwhile is Mark Danner's article on the Red Cross's interviews with our "black site" prisoners after they went to Gitmo. He reproduces the table of contents from the ICRC's report:

Contents
Introduction
1. Main Elements of the CIA Detention Program
1.1 Arrest and Transfer
1.2 Continuous Solitary Confinement and Incommunicado Detention
1.3 Other Methods of Ill-treatment
1.3.1 Suffocation by water
1.3.2 Prolonged Stress Standing
1.3.3 Beatings by use of a collar
1.3.4 Beating and kicking
1.3.5 Confinement in a box
1.3.6 Prolonged nudity
1.3.7 Sleep deprivation and use of loud music
1.3.8 Exposure to cold temperature/cold water
1.3.9 Prolonged use of handcuffs and shackles
1.3.10 Threats
1.3.11 Forced shaving
1.3.12 Deprivation/restricted provision of solid food
1.4 Further elements of the detention regime....

As Danner reminds us, the ICRC is the actual "body legally charged with overseeing compliance with the Geneva Conventions," which in a country that respected the rule of law, would mean that this report was sure to presage indictments. But that is not the United States of America ... under its previous, or current, presidents. Out of sight, out of mind.

... Andrew Sullivan compares the above TOC with the June 12, 1942 directive of Heinrich Muller, the Gestapo chief, enumerating "sharpened" or "enhanced" interrogation methods:

simplest rations (bread and water)
hard bed
dark cell
deprivation of sleep
exhaustion exercises
but also the resort to blows with a stick (in case of more than 20 blows, a doctor must be present)

Of course, the Gestapo added to that in practice ("the following, among other things"). And so did we.