Guantánamo, on Trial
In bringing justice to those accused of plotting the Sept. 11 attacks, it will never be possible to have military trials at Guantánamo that Americans can be fully proud of, or that the world will see as credible.
Still, it seems certain those trials will be held. In a triumph of raw politics over the nation’s security interests, the Obama administration was forced to abandon its effort to try Khalid Shaikh Mohammed and four others in federal court, where these cases belong. It announced that they will be tried before a military tribunal at the Guantánamo prison, which President George W. Bush made a symbol of torture and illegal detention.
Attorney General Eric Holder ineptly failed to line up local political support before announcing that the prisoners would be tried in Manhattan. But that did not excuse the hyperventilating and unyielding opposition of Mayor Michael Bloomberg, Senator Charles Schumer, Representative Peter King and other pols.
Nor did it begin to justify the law that denied money to move any Guantánamo prisoner to the United States. It was a shocking example of politicians dictating a prosecutorial decision. The result: huge gaps of competency and credibility. Federal courts have a long record of successfully handling complex terrorism cases. These most important of 9/11 trials will take place in a system of questioned legitimacy, operating under untested rules, with no experience in concluding major terrorism trials.
Still, there are things that should be done to avoid an utter legal shambles and administer some justice.
NO TAINTED EVIDENCE Mr. Holder has said repeatedly that there is enough evidence to convict Mr. Mohammed, the self-professed mastermind of the 9/11 attacks, and the others without relying on evidence tainted by torture or coercion or on hearsay evidence likewise inadmissible in federal court. Mr. Mohammed was subject to waterboard torture 183 times — after, his interrogators have said, he gave up all the useful information he had.
Military prosecutors should stick to those parameters, and not try to exploit the somewhat more lenient evidentiary rules in military commissions, or urge a fanciful redefinition of torture to preserve a defendant’s confession or other evidence. That has happened before.
ADEQUATE DEFENSE Experienced military and civilian defense counsel must be made available in adequate number and given sufficient resources and leeway. Last month, the retired vice admiral who serves as the “convening authority” for military commissions, Bruce MacDonald, issued new rules for defense lawyers without first inviting public comment or consulting the military’s chief defense lawyer, Col. Jeffrey Colwell of the Marines.
The rules were put on hold after Colonel Colwell objected that they were “unworkable” and would “unreasonably and unlawfully” interfere with the lawyer-client relationship. One would have required defense lawyers to say what language they would be speaking with their clients and to use the same language during client visits “to the maximum extent possible.” This, Colonel Colwell noted, is an “absurd” rule, unless the government is improperly monitoring the conversations, contrary to its claims.
TRANSPARENCY This is crucial at every level. Beyond allowing 9/11 survivors and families to view the proceedings via a closed-circuit hookup, the Pentagon should arrange for televising the trial worldwide. Federal courts, wrongly, do not permit televising of criminal trials. But military tribunals do not enjoy the same level of public trust, making it even more important to let the public observe them.
In any case, interest in covering the trial is bound to exceed the few dozen journalists that Guantánamo can accommodate. If arguments for televising the trial fail, alternate arrangements must be made so those seeking to cover the trial can conveniently do so.
Wrongful Foreclosures
We were worried recently when we saw an advance draft of legal agreements between federal regulators and the nation’s big banks to address and correct foreclosure abuses. The actual deals were as bad as we feared.
It turns out that the inquiry that preceded the agreements was limited to reviews of “foreclosure-processing functions” — things like paperwork handling and work-force supervision. The reviews found big processing problems — no surprise there — and the agreements call for more staff and better management.
What was not looked for is far more significant. Because so few files were examined, the regulators’ report says, “the reviews could not provide a reliable estimate of the number of foreclosures that should not have proceeded.” So much for the burning question of the extent of wrongful foreclosures. The reviews also did not look at potential abuses outside the foreclosure process, including unreasonable loan fees and misapplied loan payments. Such faulty charges can precipitate default by making it impossible for borrowers to catch up on late payments.
Nor did the reviews focus on faulty loan-modification processes, like instances in which bank employees wrongly told borrowers they needed to be delinquent to qualify for new loan terms. Delinquency subjects borrowers to late fees, damaged credit and an increased risk of falling hopelessly behind. It also harms mortgage investors who are stuck with the loan losses. But it can be profitable for banks that service loans; they can extract late fees from the borrower or upon the foreclosed home’s sale.
To add insult to injury, the agreements leave it largely up to the banks to investigate themselves on those issues. They require banks to choose, hire and pay independent consultants to check a sample of pending foreclosures; banks are then supposed to reimburse wronged borrowers. The regulators pledge to ensure that the reviews are comprehensive and reliable. We’re not holding our breath.
The agreements do not include monetary penalties, though regulators say fines are coming. Regulators appear divided over whether the agreements should preclude efforts by the states to correct and punish foreclosure abuses. The Federal Reserve and the Federal Deposit Insurance Corporation have stated clearly that the agreements do not stop other enforcement actions. The Office of the Comptroller of the Currency has not ruled out such interference. Over all, an important opportunity has been missed for real reform, redress and accountability.
Whitman the Scrivener
“A prodigious amount of material,” said Mr. Price, who is at about 3,000 documents and searching for more. They give the lie to tales of Whitman’s being a slacker of a bureaucrat when he hand-duplicated the letters and memos of government officials.
For some, the material may be frustrating for offering no new tropes and stanzas from Whitman the poet. Still, his clean penmanship, so easily read in the here and now, is something fresh to wonder about — Whitman working to keep food on the table while he wrote his great Civil War poems. In his free time, he wrote letters home for wounded and illiterate Civil War soldiers. Twelve in one day “inhabiting the voice of another,” notes Mr. Price, a literature professor at the University of Nebraska and co-director of the Walt Whitman Archive.
Whitman clearly was no passive observer who could compartmentalize his life, which makes it interesting to see what biographers will make of this emerging clerk’s tale. The papers he copied dealt with the bureaucratic mundane but also issues like the Ku Klux Klan; the trial of Jefferson Davis, the Confederate president; and westward railroad expansion. He worked at the Army paymaster’s office, the attorney general’s office and the Bureau of Indian Affairs, where the poet was famously fired after his boss pronounced “Leaves of Grass” immoral writing.
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