{"id":299,"date":"2005-11-18T23:47:54","date_gmt":"2005-11-19T04:47:54","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=299"},"modified":"2010-12-05T22:23:51","modified_gmt":"2010-12-06T03:23:51","slug":"299","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=299","title":{"rendered":"War Powers, War Lies: Part 10: Kangaroo"},"content":{"rendered":"
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War Powers, War Lies<\/h2>\n

Part 10: Kangaroo<\/h2>\n

Published in the Maryland Daily Record November 18, 2005<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The story goes that Bill Barr first suggested military commissions while the 9\/11 ruins were still smoking in New York and Washington. William P. Barr, former Attorney General, told Timothy E. Flanigan, then Deputy White House Counsel, that military commissions were the way to try the bad guys. Not the courts, not courts-martial, but military commissions, a form of adjudication unknown since World War Two.\u00a0 Flanigan\u2019s boss, White House Counsel Alberto Gonzales, picked up on it and started pushing it in the ad hoc interagency group formed to plan terrorist prosecutions.\u00a0 The other members of the group were less than thrilled, so Gonzales and Flanigan snatched the planning back from them, and planned prosecutions in strict secrecy, with commissions as the only option.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Gonzales and Flanigan were intent on commissions and the interagency group was opposed for the same fundamental reason: commissions are not disinterested tools for locating the truth.\u00a0 They are what lawyer Michael Ratner calls courts of conviction.\u00a0 Comprised of military officers unconstrained either by civilian due process principles or the Uniform Code of Military Justice, commissions can operate anonymously, secretly, and by idiosyncratic rules.\u00a0 The thinking of commission supporters was that courts would be overwhelmed by the numbers of detainee defendants, not to mention that judges and juries might be targeted and endangered; that the information to be used as evidence would be highly sensitive and access to it needed to be carefully controlled; that allowing the participation of defense lawyers would slow down the process; and that judicial review should be denied.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Deeply inimical by their very nature to American habits of adjudication, military commissions are nonetheless permissible in certain circumstances under American law.\u00a0 A Revolutionary War commission tried and hanged Major John Andre, a British spy.\u00a0 Numerous Confederate undercover agents were tried by military commissions (and mostly hanged) during the Civil War.\u00a0 Eight German saboteurs covertly landed on American shores during World War II were convicted by commission, and their sentences confirmed in Ex Parte Quirin (1942)<\/a><\/em>.\u00a0 Common to these cases was that the defendants were not members of the U.S. military (who would have had the privilege of court-martial) nor ordinary POWs, but instead enemy combatants deemed to have broken the laws of warfare. Each of the above cases, however, had to do with one particular kind of offender: a covert and therefore illegal combatant captured and tried on U.S. soil.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 One rather different precedent, however, was of greater interest to the White House lawyers making the case for military commissions: Johnson v. Eisentrager (1950)<\/a><\/em>.\u00a0 Eisentrager had been part of a detachment of German soldiers marooned in China after V-E Day, when the Germans formally surrendered.\u00a0 Being part of the Japanese Theater of the war, and under Japanese protection, they had continued the fight.\u00a0 Their continued warfare on Germany\u2019s behalf was illegal, at least in the eyes of the American soldiers who captured them after V-J Day.\u00a0 They were then tried by a U.S. military commission in Nanking.\u00a0 When they applied for habeas corpus relief, the Supreme Court denied relief saying that U.S. courts had no jurisdiction to grant habeas abroad, even if U.S. forces were alleged to be violating international law in holding or trying them.\u00a0 It was an easy leap from this precedent to Guantanamo and elsewhere outside the U.S.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In keeping with the developing thinking of these advisors, President Bush issued a November 13, 2001 order authorizing commissions, though it did not specify where these would be held.\u00a0 However, among its features was that the President in his sole discretion would determine who would be subject to trial by military commission, the rules of evidence would be essentially whatever the commissions determined, a 2\/3rds vote would suffice for a death sentence, and review would be solely by the President or the Secretary of Defense.\u00a0 There was no provision for defense lawyers, and no specification of the source of the laws tribunal defendants might be accused of violating.\u00a0 In formulating the document, the White House lawyers brushed off all suggestions from an alarmed Pentagon legal team that had tried to soften it.[1]\u00a0 They also ignored that the State Department had just been protesting the use of military commissions by other countries, e.g. to try Lori Berenson in Peru<\/a> and Ken Saro-Wiwa in Nigeria.[2]<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The reaction of press, academia and much of the bar was swift and appalled.[3]\u00a0 Perhaps to deflect it, Secretary of Defense Donald Rumsfeld issued an implementing order on March 21, 2002<\/a> which addressed one gap alarming to initial commentators: counsel.\u00a0 Now defendants could in theory employ civilian defense counsel of their choice \u2013 so long as counsel could pass the rigorous security clearance \u2013 and so long as the defendant could somehow obtain civilian counsel while being held incommunicado and without the means to pay — and so long as counsel accepted the right of the tribunal to issue gag orders.\u00a0 (Non-optional military defense counsel were also provided for.)\u00a0 But in other respects the order yielded little to the clamor of those who saw a total inconsistency between the tribunals and the practice and spirit of U.S. law.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Neal Katyal of the Georgetown Law School and Laurence Tribe of Harvard Law published a blistering attack on the tribunals in the Yale Law Journal in April 2002<\/a>.\u00a0 Among their many criticisms was that in our society, detention of anyone has traditionally involved three branches of government: the legislature to set the policy and conditions for detention, the executive to seek it, and the judiciary to impose it. The tribunals, by contrast, were designed to play out solely within the executive.\u00a0 There were similar complaints from the ACLU and Human Rights Watch.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The response of the Bush administration, by then busily rounding up Muslim men from every corner of the globe, was slow.\u00a0 In part, no doubt, this was because at that point the intake process was still ramping up, and interrogation was the priority, not adjudication or release.\u00a0 But there may have been a sense of caution, as well, because civilian courts were beginning to see habeas petitions filed by self-appointed lawyers for the detainees.\u00a0 The first case was filed on February 19, 2002.\u00a0 By mid-2004 there were 13 cases pending in the United States District Court for the District of Columbia, determined to be the venue for cases coming from Guantanamo.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The cases frequently dealt with a more fundamental issue than whether the detainees had committed crimes: the claim that detainees should enjoy some sort of process to determine whether they should even be detained as enemy combatants in the first place.\u00a0 It was a reasonable interpretation of the Administration\u2019s public pronouncements that at this point all detainees were considered subject to criminal charges by virtue of their supposed status as illegal combatants (i.e. members of al Quaeda or the Taliban).\u00a0 Hence it might have been thought that the commissions awaited all of them.\u00a0 So for the next two years, the commission rules were refined through the release of new orders, and charges were issued against a handful, about a half-dozen, of the hundreds of detainees.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Moreover, it now appears that by mid-2004 the government was quietly beginning to get rid of detainees it deemed low in both intelligence value and threat, with perhaps as many as 234 being released from Guantanamo alone.\u00a0 (Some of them were definitely being released, although others may have been rendered up to their native governments for further imprisonment.)\u00a0 In effect, without benefit of any sort of adjudicatory procedure, the Administration was doing the equivalent of acquitting some detainees and finding others guilty of being enemy combatants.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The courts, however, had other ideas.\u00a0 Indeed, as Alan Dershowitz has observed, after the release of the notorious Abu Ghraib photographs in April 2004, it became politically impossible for the Supreme Court to allow the Administration to carry on business as usual with the detainees.\u00a0 In June 2004, therefore, the Supreme Court handed down Rasul v. Bush<\/a><\/em>, which shocked the Administration by declaring that judicial habeas authority extended to Guantanamo, and that detainees should have access to some form of due process to determine whether they were even enemy combatants.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Administration was nevertheless one step ahead of the Supreme Court.\u00a0 It had already taken account of the possibility it might lose Rasul<\/em> and be called upon to allow formal adjudication of its identification of detainees as combatants.\u00a0 Hence, nine days after Rasul<\/em>, the Government announced a program of Combatant Status Review Tribunals<\/a> (\u201cCSRTs\u201d).\u00a0 Having already determined in its own mind who were the combatants, the Pentagon really had no use for further adjudication, but if the Justices wanted adjudication, adjudication the Justices would get.\u00a0 \u201cKangaroo court\u201d adjudication, to be sure, but adjudication nevertheless.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Even the military commission machinery that had been set up for the trial of war crimes proved too cumbersome for the designers of the CSRTs.\u00a0 In these CSRT proceedings, intended to be held before three military officers, the burden of proof would on the detainees, and they could be and were denied information about who their accusers were and what information was being used to \u201cconvict\u201d them.\u00a0 They were denied lawyers.\u00a0 Reporters were largely prevented from attending.\u00a0 Between July 30, 2004 and October 20, 2004, approximately 153 CSRTs were held.\u00a0 During that period exactly one detainee was found not to be an enemy combatant.\u00a0 Res ipsa loquitur<\/em>.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 At this point, Judge Joyce Hens Green of the District Court for the District of Columbia tried to put her foot down.\u00a0 The Guantanamo cases had been consolidated before her for various matters, in light of her significant experience in intelligence matters.\u00a0 One conservative judge, Richard Leon, nonetheless opted out so as to preserve the ability to make rulings more favorable to the Administration.\u00a0 But the majority excoriated the CSRT rules,[4] There had to be counsel, and there had to be reasonable access to prosecution evidence.\u00a0 These rules were formalized in new CSRT protocols made part of a court order on November 8, 2004.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It made no difference.\u00a0 The CSRTs rolled on, and by March 29, 2005, when the tribunals ended, 558 tribunals had been held, and there were only 38 \u201cacquittals.\u201d\u00a0 And certain language in Pentagon press releases suggested that the \u201cacquittals\u201d only meant the detainees were \u201cno longer\u201d enemy combatants.\u00a0 So far as I have been able to determine, not one detainee was affirmatively cleared by CSRT of ever having been one.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Meanwhile, there was trouble back on the military commission front.\u00a0 In March of 2004, two military prosecutors, Capt. John Carr and Maj. Robert Preston, USAF, quit because, according to the Wall Street Journal,<\/a> they believed their fellow prosecutors were ignoring torture allegations, failing to protect exculpatory evidence, and withholding information from superiors.\u00a0 Once the first trial began, on August 24, of Salim Ahmed Hamdan (Bin Laden\u2019s driver), a defense lawyer, Navy Lt. Cmdr. Charles Swift, made an opening statement attacking the fitness of the presiding officer, Col. Peter Brownback, for, among other things, lack of current bar registration and ex parte contact with the Office of Military Commissions.\u00a0 When Brownback angrily denied the contact, Swift played an actual recording of the conversation.\u00a0 He also demonstrated that another member, Lt. Col. Curt S. Cooper, did not even know what the Geneva Conventions were. <\/a>\u00a0In fact, only one member of the 6-member panel escaped Swift\u2019s demolition.\u00a0 Small wonder that an LA Times editorial<\/a> called the proceedings \u201csomething between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin.\u201d\u00a0 While there were later efforts to weed out some of the more incompetent members of the tribunal, Brownback retained his post, reportedly because of close personal ties with the Appointing Authority.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Hamdan commission and all the others were derailed when, on November 8, 2004, Judge James Robertson held the tribunals illegal under the Geneva Conventions and due process, among other things.\u00a0 On July 15, 2005, a panel of the D.C. Circuit, including now-Chief Justice John Roberts, reversed.\u00a0 But that was not the end.\u00a0 On November 7, the Supreme Court granted certiorari (Roberts not participating).\u00a0 Although on July 18, the Department of Defense announced its intent to proceed with the commissions (while improving the rules to exclude evidence not made available to the defense), and charge eight more detainees with war crimes, the commissions appear to be suspended right now.\u00a0 So this remains a story in progress.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Objectionable as the use of military commissions and CSRTs to dodge due process and accountability may be, some grim facts must keep it in perspective.\u00a0 Unfortunately this is not as bad as it gets.\u00a0 All of the recent cases discussed above have to do with Guantanamo<\/em>.\u00a0 The Supreme Court has never suggested that habeas might be available in other places where the U.S. keeps detainees.\u00a0 For all its horrors, up until now (the hunger strikes proceeding apace there might change this) Guantanamo has been a place where at least detainees don\u2019t usually die.\u00a0 That is not insignificant, as the ACLU made clear in an October 24 report<\/a> which revealed that 21detainees appear to have died of homicides at U.S. facilities in Iraq and Afghanistan, some under torture while being interrogated by Navy SEALs and the CIA.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A report in The Washington Post on November<\/a> 2 said the CIA had set up secret prisons for terror suspects in eight countries including Thailand, Afghanistan and \u201cseveral democracies in eastern Europe,\u201d where probably 100 detainees are being kept without any admission by the U.S. they are even there.\u00a0 (A later though less reliable report suggests the real number may be in the thousands.)\u00a0 It seems unlikely the detainees there even received either military commissions or CSRTs.\u00a0 From their even lower circle of hell, they would probably love to face military commissions rather than torturers.\u00a0 But the Court has never suggested that habeas or any other form of U.S. judicial remedy would be available to such detainees.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As this is being written, an Iraqi court, trained and financed by the United States, is trying our enemy Saddam Hussein for human rights violations.\u00a0 And here is the moral, strategic, and tactical problem: How we can expect the world to accord full faith and credit to that court\u2019s eventual verdict when we establish and countenance tribunals that are themselves human rights violations?\u00a0 A question urgently worth pondering.<\/p>\n

[1] \u00a0\u00a0Michael Ratner and Ellen Ray, Guantanamo: What the World Should Know<\/em> (2004)<\/a>, at 71-75.<\/p>\n

[2]\u00a0\u00a0 Ratner and Ray, at 79.<\/p>\n

[3]\u00a0\u00a0 See e.g. here<\/a>.\u00a0 Since the publication of this piece, links to a number of other examples have gone dead.\u00a0 However, I was satisfied at the time that the revulsion was widespread.<\/p>\n

[4]\u00a0\u00a0 Al Odah v. U.S.<\/em>, 346 F.Supp.2d 1 (October 20, 2004).<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

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And here is the moral, strategic, and tactical problem: How we can expect the world to accord full faith and credit to that court\u2019s eventual verdict when we establish and countenance tribunals that are themselves human rights violations? A question urgently worth pondering.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[199,702,731,1803,585,1844,845,1816,469,730,1837,1823,1825,660,1827,1840,1798,577,1830,10,13,1817,1831,1802,939,661,1361,1843,1666,1805,1809,69,1812,1797,5,71,1813,1841,1835,1796,1838,392,1792,1822,1839,155,1818,1654,1819,1821,1786,1807,86,1832,1828,1806,1833,1793,1834,1646,148,1800,357,1811,415,1801,1808,594,941,1829,1795,1446,401,138,1810,1791,1820,1824,855,1765,1826,1842,1804,593,1773,1788,1836,1790,1815,1799,803,1787,1467,1789,1814],"class_list":["post-299","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-abu-ghraib","tag-abu-ghraib-photos","tag-aclu","tag-administrative-review","tag-afghanistan","tag-al-odah","tag-al-quaeda","tag-alan-dershowitz","tag-alberto-gonzales","tag-american-civil-liberties-union","tag-appointing-authority","tag-captain-john-carr","tag-captain-robert-preston","tag-central-intelligence-agency","tag-charles-swift","tag-chief-justice-john-roberts","tag-china","tag-cia","tag-colonel-peter-brownback","tag-combatant-status-review-tribunals","tag-courts-martial","tag-csrts","tag-curt-s-cooper","tag-death-sentence","tag-department-of-state","tag-donald-rumsfeld","tag-due-process","tag-ellen-ray","tag-enemy-combatants","tag-ex-parte-quirin","tag-gag-orders","tag-geneva-conventions","tag-georgetown-law-school","tag-german-soldiers","tag-guantanamo","tag-habeas-corpus","tag-harvard-law-school","tag-hunger-strikes","tag-idi-amin","tag-illegal-combatants","tag-james-robertson","tag-japan","tag-john-andre","tag-john-carr","tag-john-roberts","tag-johnson-v-eisentrager","tag-joyce-hens-green","tag-judge-james-robertson","tag-judge-joyce-hens-green","tag-judge-richard-leon","tag-kangaroo-courts","tag-ken-saro-wiwa","tag-laurence-tribe","tag-lieutenant-colonel-curt-s-cooper","tag-lieutenant-commander-charles-swift","tag-lori-berenson","tag-los-angeles-times","tag-major-john-andre","tag-mel-brooks","tag-michael-ratner","tag-military-commissions","tag-nanking","tag-navy-seals","tag-neal-katyal","tag-nigeria","tag-november-13-2001-order","tag-order-of-march-21-2002","tag-osama-bin-laden","tag-peru","tag-peter-brownback","tag-pirsoners-of-war","tag-president-bush","tag-president-george-w-bush","tag-rasul-v-bush","tag-representation-by-counsel","tag-revolutionary-war","tag-richard-leon","tag-robert-preston","tag-rules-of-evidence","tag-saddam-hussein","tag-salim-ahmed-hamdan","tag-secret-prisons","tag-secretary-of-defense","tag-taliban","tag-thailand","tag-timothy-e-flanigan","tag-uganda","tag-uniform-code-of-military-justice","tag-united-states-district-court-for-the-district-of-columbia","tag-v-e-day","tag-wall-street-journal","tag-william-p-barr","tag-world-war-ii","tag-world-war-two","tag-yale-law-journal"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/299","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=299"}],"version-history":[{"count":11,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/299\/revisions"}],"predecessor-version":[{"id":1606,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/299\/revisions\/1606"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=299"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=299"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=299"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}