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A week ago Friday, Navy Captain Keith Allred, the military judge presiding in the Hamdan case, handed down a ruling in which he concluded that Brigadier General Thomas Hartmann—the legal adviser to the convening authority—had behaved impermissibly in bringing the case, and required Hartmann’s disqualification from the proceedings. In reaching these determinations, Capt. Allred twice cites “The Great Guantánamo Puppet Theater,” my article discussing the controversy about Hartmann’s conduct. And this has the editors at the Wall Street Journal seeing red.
Congress didn’t define such unlawful influence, however, so Judge Allred defined it himself. And his elastic definition included the fact that the antiwar Harper’s magazine had published a screed against military commissions and General Hartmann. Seriously.
In the conspiracy-oriented view of the Journal, the Allred ruling is just more evidence of a “war by lawyers” against the military commissions.
The larger game here, among many lawyers and most of the press, is to give the impression that military commissions are unworkable. The critics want to delay the trials long enough to push them into the next Administration, which they hope will then abandon commissions. Their ultimate goal is to get terrorists tried like any other defendant in civilian courts or regular courts-martial—fully aware of how daunting the chance of convictions would be.
I plead guilty to the high crime of being a lawyer, but I was amazed to learn of my opposition to the war. I do feel that I was conned into supporting the war, and that the Journal played a less-than-honorable role in the process. That, however, is history, and feelings about the war in Iraq really have nothing to do with the process of bringing alleged terrorist masterminds to justice. The military tribunals are about justice and upholding proud American traditions—not part of a debate on whether the war in Iraq was, or is, a good thing.
The Journal seriously distorts the issues in the Hamdan case. There are three things to consider:
Timing. My view, widely shared by the legal community, is that the Bush Administration should have brought charges against the Gitmo defendants in the first two years following their capture. Instead it has inexplicably waited six years, and in the process subjected the prisoners to treatment that will greatly complicate the process of prosecutions. This is bad judgment both because it delays justice for the victims of the acts of which the prisoners stand accused, and because it will inevitably undermine confidence of the larger community in the fairness of our system of justice. The Journal cites the Quirin case, and so did I in an earlier article. The prosecution was conducted within a matter of months, the prisoners were not mistreated, and justice was swiftly dispensed.
Political Manipulation. Judge Allred’s decision does not rest on my opinion piece. It rests on evidence taken in the proceedings before him, which I summarized. This includes the testimony of the former chief prosecutor, which the Journal has sanitized. The prosecution was pressured to bring “sexy” cases and to bring them in time for the election season, with the objective of benefiting the political party to which the Journal is closely attached. This is a horrendously improper political manipulation of the justice system and is seen as just that by most of the participants in this system, regardless of their political stripe. One of the strongest cases for prosecutors was that of David Hicks, an Australian accused of taking up arms against U.S. forces. The prosecutors’ efforts to go after Hicks were unsettled when Vice President Cheney decided to set Hicks free as part of an effort to influence the Australian elections. The result was revolting, unseemly (and ineffective, as Howard and his party went down to defeat and the blatant manipulation brought to bear in the Hicks case disgusted the Australian electorate). The Journal, however, is keen to get all the political juice it can for the beleaguered Republicans, even at the expense of the nation’s reputation for doing justice. One would be hard-pressed for better evidence of their cynically partisan and short-sighted perspective.
Upholding Military Traditions. The Journal says that the “lawyers” want all Guantánamo defendants to be tried in civilian courts. Lawyers, however, rarely hold unanimous views other than on shared principles. They are united by a concern that whatever system is used, it should reflect our values of justice. In my own view, and that of a large part of the legal community, the American military justice system is a worthy alternative to the civilian courts. It reflects well upon America. It may be criticized on some points, of course, but in many respects it is more efficient and fair than the American federal courts system. The concern here is not that all of these cases must go to the civilian courts. It is, rather, that the Bush Administration has dangerously toyed with the military justice system. I have no objection to court-martialing these defendants. But they should be court-martialed under the normal rules that we apply in courts-martial. The Bush Administration has instead jury-rigged the court-martial system against these defendants, in a manner calculated to embarrass us all. And no one has been more embarrassed by the Rube Goldberg contraption they have constructed than the men and women in uniform who are asked to administer it.
When the test came, in the form of the Hamdan case, we saw an amazing spectacle. The attack was led by military lawyers—defense counsel. It was sustained by the former chief prosecutor, an Air Force colonel (whose view was, as we learned, shared by many if not most of the other prosecutors). It succeeded when the judge, a Navy captain, ruled that the motion had scored its points. I can’t think of another case in which the profession has been so brought into harmony about an issue.
And this raises the question: Why does the Wall Street Journal so disrespect the men and women in uniform who run our military justice system? They deserve our support and respect. But the Journal, in its partisan fervor, refuses to give them their due. What I see in the Hamdan ruling is something very basic: a vindication of the professionalism and integrity of the uniformed lawyers. They serve their country well, and they continue as the guardians of traditions that others, to their shame and to our own, have forgotten.
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Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”