A Stitch in Haste

Today's Bush Administration Orwellianism:

Rear Adm [Harry] Harris said he did not believe the men had killed themselves out of despair.

"They are smart. They are creative, they are committed," he said.

"They have no regard for life, either ours or their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us."

This is, of course, utter nonsense. Did these men crash into an aircraft carrier as they hanged themselves? Or perhaps they simply watched "Life of Brian" one time too many.

Admiral Harris is creating a either-or proposition where none exists. Quite the opposite: people — even bloodthirsty terrorists — who are "smart, creative and committed" can easily fall into despair when they recognize the futility and hopelessness of a situation. They are arguably even more likely to do so.

This is not to say that the detainees, or their suicides, are in any way noble. But to say that anything and everything that (alleged) terrorists do is by definition "an act of war" simply because it was done by (alleged) terrorists is absurd.

Perhaps no tears ought to be shed over these suicides, but we should not dilute the meaning of terms like "terrorism" and "act of war" haphazardly, lest we rob them of their true importance.

More thoughts from PoliBlog.

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Meanwhile, only 10 out of about 460 Guantanamo detainees have been charged before a military tribunal, let alone tried in a criminal court. Our claim to the moral high ground committed suicide long before these three men did.

"They're all terrorists; they're all enemy combatants."

--Rear Admiral Harry B. Harris Jr., commander, Guantánamo detention center task force

So much for "innocent until proven guilty." Because nothing is more important than "defending the American way" (as in "truth, justice and ..."?).

And remember the context: These detainees need never get their day in court secret military tribunal. They can be held in Guantánamo for the rest of their lives without even a kangaroo court finding that they are in fact "all terrorists, all enemy combatants."

And also recall the perverse, Kafkaesque sort of "justice" that the Military Commissions Act will produce. It will be precisely those detainees against whom the government's case is weakest who will be least likely ever to get a hearing -- the government will only actually "prosecute" (if you can call it that) those detainees against whom the government actually has evidence of terrorism. End result: Those more likely to be guilty will be treated more fairly than those more likely to be innocent.

Madness. Sheer madness.

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More:

After two years in which the military sought to manage terrorism suspects at Guantánamo with incentives for good behavior, steady improvements in their living conditions and even dialogue with prison leaders, the authorities here have clamped down decisively in recent months.

Security procedures have been tightened. ... Admiral Harris said in an interview ... "I don't think there is such a thing as a medium-security terrorist."

Jack Nicholson's got nothing on this lunatic. What are they afraid of -- that the detainees will escape and swim back to Saudi Arabia? That they'll clutter the place up with their mass suicides?

This isn't justice; this isn't even "excessive precaution." It's masochism -- in the name of "defending America."

Madness. Sheer madness.

The military, along with other government entities, is charged with defending the American way of life.

I was under the impression that a key component of the American way of life was the right to secure effective representation of counsel in criminal trials and other government attempts to deprive one of life, liberty or property.

Silly me:

The senior Pentagon official in charge of military detainees suspected of terrorism said in an interview this week that he was dismayed that lawyers at many of the nation's top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms' corporate clients should consider ending their business ties.
...
Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs ... said, "I think, quite honestly, when corporate C.E.O.'s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.'s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

Private corporate clients, like private individuals, are certainly free to choose their attorneys based on whatever criteria, rational or irrational, that they wish — see one especially stupid example here.

But notice the same deliberate and dishonorable bait-and-switch that we have seen before: "representing terrorists." But of course, the correct expression, to those of us who are truly defending the American way of life, is "representing accused terrorists." Some Guantánamo detainees are undoubtedly guilty; some are undoubtedly not. Stimson, an evil man who shills for evil men, is trying to legitimize his evil views by blanking out the very fact that makes him and his co-conspirators evil: These detainees have been convicted of nothing, not even under the kangaroo tribunal system established by the Military Commission Act.

If you subscribe the Stimson's evil views, then the next step is self-apparent: a military policy, if not a Congressional statute, forbidding the military, defense contractors, or perhaps the entire federal government, from doing business with any of these law firms. It wouldn't be the first time that the government financially quashed freedom of conscience on behalf of the military.

I'll put my faith in the ethics codes of lawyers over the megalomaniacal War on Terror rationalizations of Pentagon apologists any day of the week.

And I suspect that, without a degradation from "moral suasion" to flat out threats, most "greedy" capitalists will make the right decisions too.

(POST SCRIPT: Just out of curiosity, I wonder what the client list of Halliburton's outside counsel looks like.)

More thoughts from Craiggie.net, MissLaura, Fables of the Reconstruction, The Impolitic, Carol Platt Liebau, Concurring Opinions, WaPo.

UPDATE #1: The Pentagon is now repudiating Stimson's remarks. Too little too late.

UPDATE #2: Stimson resigned.

The White House quietly issued an Executive Order yesterday formally creating the kangaroo courts military tribunals at Guantánamo Bay that Congress authorized under the Military Commissions Act (i.e., the same act that unconstitutionally suspends habeas corpus) after the Supreme Court held in Hamdan v. Rumsfeld that legislative authorization was indeed required.

Remember: No alien detainee has a right to a hearing before these tribunals; the government decides who will appear before them. (The tribunals do not apply to American citizens.) And the government will therefore only hold hearings for those detainees whom they can conclusively prove are in fact guilty -- the "slam dunks," to borrow a phrase. Those for whom the evidence is weaker (i.e., precisely those more likely to be innocent) will of course be denied hearings, and will rot in Gitmo -- very possibly for the rest of their lives.

Madness. Sheer madness.

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Speaking of rotting in Gitmo:

Australia was refused permission to send an independent psychiatrist to Guantánamo Bay to assess the lone Australian prisoner at the U.S. detention camp in Cuba, a senior Foreign Department official said Thursday.
...
Australia's embassy in Washington wrote to the Pentagon on Dec. 5 to request an independent psychiatric assessment of David Hicks on behalf of his lawyers and family. Failing that, Australia wanted an assessment by Guantánamo medical staff.

Hicks, a former kangaroo skinner who converted to Islam and is accused of fighting for the Taliban, has been held at Guantánamo for five years and his attorneys and family say he may have developed mental illness during his extended incarceration.
...
Hicks is one of three high-profile prisoners at Guantánamo who were selected this month to become the first suspects to be tried by military commissions for alleged terrorist crimes.

Last time I checked, Australia was a "trusted ally" in the War on Terror. Australia is also part of the "coalition" with armed forces in Iraq; two Australian soldiers have died in Iraq. The Australian government deserves better than a chiding finger-wag from the United States. Hopefully they won't hold a grudge the next time we need a favor, let alone some international justice, from them.

"Congress expresses its appreciation to the Government and people of Australia for the support given to the United States in the aftermath of the terrorist attacks on September 11, 2001 [and] pays tribute to the relationship between the United States and Australia and looks forward to the continued growth and development of all aspects of the relationship[.]"
--H.Con.Res. 217 (107th Congress, October 16, 2001)

My vision of Hell is being falsely accused of a serious crime and being offered a plea bargain to a lesser offense.

It's easy to insist, in armchair-quarterback fashion, that you would never, ever, accept a plea for a crime you didn't commit -- that principles always trump pragmatics. Especially when you are typically required, as a part of a plea bargain, to admit in court, publicly and under oath, that you are in fact guilty and to describe, in detail, how you committed your crime. I'd rather be defecated upon.

But prison is an ominous -- in some cases lethal -- proposition. It is not irrational to conclude that anything -- anything -- is better than prison.

And the only thing worse than prison is Guantánamo:

[David] Hicks is the first to be charged under the tribunals which have been revived by Congress after the previous system, created by President George W. Bush, was declared illegal by the US Supreme Court.

And Hicks is now the first to plead guilty, an outcome that the US administration will see as something of a victory.

But Hicks's plea, coming after more than five years in detention and after more serious charges were dropped, may only bolster criticism that the tribunal process and the Guantanamo camp represent a "law-free zone" that breaches fundamental human rights.
...
While the Bush administration has called the detainees at Guantanamo the "worst of the worst," even prosecutors did not portray Hicks, a former kangaroo skinner, as a big fish or "high value" suspect.

Remember, Guantanamo is such a terrible experience that, when coupled with the possibility, if not probability, of spending the rest of your life there, several detainees have been driven to suicide. The only thing worse than a nightmare is a nightmare that may never end.

Is Hicks guilty of -- something? Quite possibly. So his reality-based nightmare is not quite the same as my hypothetical one. But it's still a nightmare that he almost certainly did not deserve.

And he's one of the lucky ones.

Previous post on Hicks here.

More thoughts from Outside the Beltway:

Khalid Sheikh Mohammed's "confessions" have been widely disregarded worldwide, since everyone is pretty sure that he was tortured. Hicks' confession will likely be treated with the same level of skepticism. If their confessions are true, then worldwide skepticism of those confessions is only going to hamper counterterrorist measures and bolster the strength of our enemies.

PoliBlog:

While it is likely that Hicks is guilty, the fact that it has taken this long to get to this point, coupled with the ongoing serious controversy about Guantánamo and detainees in general, has cast a serious shadow on whatever outcomes the system produces.

Balkinization:

The brilliance of Hicks' plea is that rather than spending months of additional Guantánamo incarceration contesting this point before a tribunal biased against him, he can quickly pursue his claim in U.S. and Australian civilian courts more committed to the rule of law.

ACSblog:

Chief Prosecutor Col. Davis was more willing to speculate about what a plea deal might include than the defense. He said at last night's press conference (I'm paraphrasing) that if he were a betting man, the odds were that Hicks could be in Australia by the end of the year.

Maybe Guantánamo isn't Hell after all. Maybe it's only Purgatory.

"After the conversations we had with David you could see all he wants to do is get home. If any of you put yourself in David's situation ... most of you would be pleading guilty to something just to get out of the place."
--Terry Hicks, father of Guantanamo detainee David Hicks

Apparently it's not only Australian detainee David Hicks who may be willing to "say anything" to get out of Guantanamo, but also the Australian government itself:

The government would be powerless to reduce any sentence served in an Australian prison by a Guantanamo Bay detainee who this week admitted to aiding al-Qaida, the [Australian] attorney general said Thursday.
...
"The arrangement provides for enforcement of the nature and duration of any sentence, so that the Australian government could not unilaterally shorten or dispose of any such sentence," [Philip] Ruddock told Parliament.

Granted, I'm venturing far outside my comfort zone on this subject, as I know little nothing about Australian civil rights law, post-conviction remedies or separation of powers doctrines, not to mention the law of war, extradition law or the Geneva Conventions.

But I do know that courts, including Australian courts, can void contracts.

Speaking strictly in the abstract, all David Hicks need do once he's in Australia is file their equivalent of a habeas petition -- or any other action that gets him into court -- and simply claim duress. A contract entered into under duress is voidable. End of discussion.

Alternatively, he can simply claim unconscionability, which also voids a contract.

Surely a contract that requires the use of the Australian penal system must be subject to review by Australian courts. And it is of course those same Australian courts that will decide whether the courts (i.e., they themselves) are bound by this contract in the first place.

Stated differently, the Australian courts can simply rule that they were not a party to the contract and need not be bound by it, even if Hicks nominally is. In the U.S. at least, the Justice Department cannot simply "contract away" the jurisdiction of federal courts (though I suspect the Bush Administration wishes otherwise).

Finally, whatever rules of due process Australian citizens enjoy may very likely trump the particulars of this plea bargain. In the U.S., it is well-settled law that criminal defendants cannot waive their rights casually or haphazardly; very rigorous standards of due process must still be met.

Keep in mind that it's not like Australia would then send him back to Gitmo, and would certainly not just set him free. He would presumably get a regular Australian criminal trial, or at least a proper (i.e., uncoerced) sentencing hearing.

Again, Hicks is very likely guilty of -- something. Point conceded. But even the guilty have rights, and have some entitlement to basic human dignities -- including not being subjected to kangaroo court plea bargains (no pun intended).

Hopefully the Australian courts will concur and disregard Hicks' questionable plea deal.

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Meanwhile, Defense Secretary Robert Gates is inviting Congress to initiate discussions on how to eventually close Guantanamo. Which invites the question: If it ain't broke, why shutter it?

An OpinionJournal piece by two former Bush I staffers and current Bush II apologists is teeming with lies and distortions about Guantanamo and the implications of closing it. But I'll focus on just one:

Closing Guantanamo would also be a victory for al Qaeda because the other alternatives for detaining captured jihadis either give terrorists a legal advantage.

Ignore for the moment the grammatical error in the stray "either." This passage contains a not new, not clever and not intellectual honest innuendo: That everyone in Guantanamo is in fact guilty.

The most brazen examples of this deception have been from Guantanamo's (deeply disturbed) former commander, Rear Admiral Harry Harris, who has repeatedly insisted that all Gitmo detainees are in fact guilty (and also that they all "the worst of the worst" and that their occasional suicides are not acts of desperation but "acts of war").

As I've explained previously, the reason that the White House and the Pentagon are so desperate to avoid anything remotely resembling a bona fide trial for most detainees is precisely because they can't prove guilt. Only the "slam dunks" get what few crumbs of due process that the Supreme Court has tossed them. The ones for whom the government does not have a solid case are either quietly released or simply rot behind bars and barbed wire -- quite possibly for the rest of their lives.

More:

The second alternative, bringing the detainees into the U.S., also would ... open vast new litigation vistas for the detainees and their American lawyers -- including challenges not merely to their classification as enemy combatants[.]

Compare and contrast:

• Giving American-style rights to terrorists.



• Giving American-style rights to alleged terrorists.

The faux indignation of Gitmo apologists loses quite a bit of its punch when that pesky, but obligatory, word is included. Which is precisely why the Terror Warriors so insolently omit it.

The most precious American soil has always been the Moral High Ground. The swamp that is Gitmo does not qualify. And, increasingly, neither does the rest of the "homeland" that we are supposedly trying to secure.