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[No Comment]

Military Lawyers and the Gitmo Commissions


On October 22, I reported on the rising number of military lawyers who exercise increasingly open loathing and contempt for the Military Commissions system which was concocted by former Attorney General Gonzales and some of his political buccaneers. Since that time, a number of additional military lawyers have stepped forward with denunciations.

Last Saturday, the Independent reported that a major who had participated in 49 combat status review tribunals (CSRT) denounced them in scathing terms in evidence which will now come before the Supreme Court. This story had originally been issued by the AP’s Ben Fox back on October 5. Here’s what the Independent had to say:

An American military lawyer and veteran of dozens of secret Guantanamo tribunals has made a devastating attack on the legal process for determining whether Guantanamo prisoners are “enemy combatants”.
The whistleblower, an army major inside the military court system which the United States has established at Guantanamo Bay, has described the detention of one prisoner, a hospital administrator from Sudan, as “unconscionable”. His critique will be the centrepiece of a hearing on 5 December before the US Supreme Court when another attempt is made to shut the prison down. So nervous is the Bush administration of the latest attack – and another Supreme Court ruling against it – that it is preparing a whole new system of military courts to deal with those still imprisoned.

The whistleblower’s testimony is the most serious attack to date on the military panels, which were meant to give a fig- leaf of legitimacy to the interrogation and detention policies at Naval Base at Guantanamo Bay. The major has taken part in 49 status review panels. “It’s a kangaroo court system and completely corrupt,” said Michael Ratner, the president of the Centre for Constitutional Rights, which is co-ordinating investigations and appeals lawsuits against the government by some 1,000 lawyers. “Stalin had show trials, but at Guantanamo they are not even show trials because it all takes place in secret.”

Combatant Status Review Tribunals were held for 558 detainees at the Guantanamo in 2004 and 2005. All but 38 detainees were determined to be “enemy combatants” who could be held indefinitely without charges. Detainees were not represented by a lawyer and had no access to evidence. The only witnesses they could call were other so-called “enemy combatants”. The army major has said that in the rare circumstances in which it was decided that the detainees were no longer enemy combatants, senior commanders ordered another panel to reverse the decision. The major also described “acrimony” during a “heated conference” call from Admiral McGarragh, who reports to the Secretary of the US Navy, when a the panel refused to describe several Uighur detainees as enemy combatants. Senior military commanders wanted to know why some panels considering the same evidence would come to different findings on the Uighurs, members of a Muslim minority in China.

The unnamed major is now the second CSRT officer to come forward and expose the farcical inner working of the CSRT. Actually to call these proceedings a “kangaroo court” is an insult to kangaroo courts. They are far less than that; but still, they reflect perfectly the Bush Administration’s corrupted notion of justice.

The same day Jess Bravin at the Wall Street Journal offered some terrific follow up on my initial piece concerning what transpired in connection with Hicks. His piece was built around an interview with Col. Moe Davis.

In March, a plea bargain guaranteed Australian David Hicks, an inmate at the U.S. military prison in Guantanamo Bay, his freedom by year’s end. The deal helped Australian Prime Minister John Howard, a U.S. ally, avoid a bruising domestic controversy. Now, the former chief prosecutor at the Guantanamo military commission in Cuba for suspected terrorists says in an interview that the Hicks case was the beginning of political interference in the offshore justice system. Col. Morris Davis resigned earlier this month to protest new rules he says will ensure that political officials have similar control over future war-crimes prosecutions.

Until recently, there was a dispute over who had control over prosecutions at the commission. Under the new structure approved by the
Defense Department early this month, the chief prosecutor will report
ultimately to the Pentagon general counsel, who is appointed by the Bush
administration. The system “takes the ‘military’ out of military commissions and makes them political commissions,” says Col. Davis, a career Air Force lawyer. Col. Davis added that other political considerations surfaced in recent months, including a push to get trials sufficiently advanced to prevent the next president — “particularly Hillary Clinton and the Democrats, if they win” — from changing the policy.

Pentagon spokesman Geoff Morrell rejected Col. Davis’s accusations. “At
no time over the course of his two years in that job did he allege
political interference to anyone, and not until he chose to leave the
job did he cry politics,” said Mr. Morrell. “That is a serious charge,
and not at all supported by the facts.” Administration officials say the new system is sufficient to protect the prosecution from improper influences.

Actually, Geoff Morrell’s statement is typical of the more absurd claims that routinely are emitted from the Pentagon’s public affairs department these days. Under Dorrance Smith, it continues to be the last Pentagon redoubt of the Rumsfeld-era Neocons, and it beams Neocon truth and Neocon reality, which only coincidentally have something to do with the genuine article. Next Morrell will tell us that the sun rises in the West and sets in the East. The record is filled with compelling evidence of political interference, and Davis made a series of fairly dramatic statements around the time of the Hicks case which made his concerns transparent to everyone who was actually listening. Moreover, Col. Davis is not the only officer raising the charge—as I noted, it has come from defense counsel and military commissions staff as well.

The role played by Defense Department General Counsel Jim Haynes in this process is also noteworthy. Haynes’s nomination to a judgeship on the Fourth Circuit was a nonstarter even when the G.O.P. controlled the Senate, because multiple Republican senators opposed him. He was accused of having misled Congress in testimony concerning coercive interrogation practices and other matters. It’s amazing that Haynes has held on so long into the Gates era, but then his employment options are probably pretty limited. Haynes is generally considered one of the Rumsfeld Pentagon officials most likely to face indictment and prosecution for war crimes because of his direct role in the process leading to Rumsfeld’s approval of torture techniques. Haynes certainly will not be indicted by the Bush Administration, but he probably will run into troubles with one or more American allies in the near future, as soon as he has left his official position. Like his former boss, Haynes will probably have to avoid travel outside of the United States in the future if he wants to keep out of jail. All of this makes his heavy hand on the war crimes prosecution steering wheel more than a bit ironic.

However, the harsh criticism leveled at the Commissions is certainly not unique to Col. Davis, who quite properly reveals the political puppet theater that the Cheneys and Addingtons are playing with Gitmo. Bravin’s piece reveals their major concern to be the prospect of a Clinton Restoration; they are eager to tie the hands of their successors. Since the standard code of ethical government, as reflected by Hans Jonas among others, requires a democratic leader possessed of power to do the maximum to preserve flexibility for those who will follow him, this can be viewed as just another in a long series of moral lapses.

But I come back with renewed admiration to the role played by the career military lawyers. They faithfully discharge their duty, but they are not witless or without opinions about the foolishness that is being carried out in the nation’s name. Indeed, deep in the 544-page transcript of the Hicks case available at the Pentagon’s website can be found some real gems. Consider these comments, which Prof. David Glazier recently brought to my attention. They are offered under the typically witty heading “Just Because You Can Doesn’t Mean You Should” by a nameless senior officer:

[I]f we view international terrorism as a world issue in which we expect the assistance of others, we should resist the easy solution of conducting ad hoc proceedings just because we can . . . we should seek to maximize the appearance of fairness so as to limit avenues for complaint of victor’s justice. The appearance of fairness may best [be] achieved by prosecution of terrorist suspects in United States Federal District Courts.

The members of al-Qaeda may or may not ‘deserve’ trials in a time-tested and jurisprudentially sound forum. However, the world-respected reputation of United States criminal courts has not been built nor maintained for the benefit of any evil person . . . The use of an established court system at this critical time should not be viewed as an action on behalf of accused terrorists, but rather as a representation to needed international partners that the course of our ship of state is steady, and properly charted for the rough waters ahead.

While the author’s name has been redacted, a careful read suggests very strongly that he is one of the presiding judges at Gitmo. The analysis is dead on, and it clearly reflects the thinking of the officer-lawyers who are being forced to live with and act out the Gitmo charade.

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