Preserving Justice By Saying No

 Preserving Justice By Saying No

The Terror Courts: Rough Justice at Guantanamo Bay, by Jess
Bravin, Yale University Press, 414 pages, $30.I was considerably more pessimistic about the War on Terror’s
impact on American liberty before I read Jess Bravin’s The
Terror Courts: Rough Justice at Guantanamo Bay. It’s not that
the author is an optimist—far from it. Bravin, The Wall Street
Journal’s Supreme Court reporter, describes with dismay how
George W. Bush’s administration attempted to create a shadow
justice system for dealing with those the executive branch views as
perpetrators and facilitators of terror. Wielding no partisan axe,
Bravin also laments Barack Obama’s failures to renounce many of the
executive powers claimed, and often exercised, by Bush.But Bravin also describes a civil war within the national
security establishment. As Bush’s most hardened hawks charged ahead
in rounding up suspected terrorists, others within the government
fought, both overtly and covertly, to protect constitutional
procedures.It is no secret that sectors of civil society—the civil
liberties organizations, the organized bar, much of the news
media—battled Bush and his henchmen (and now Obama and his
henchmen) to prevent abuses of civil liberties by military
tribunals. Bravin showed that they had an important set of allies
in that fight. To the extent that liberty and due process have
survived, they endure thanks in large measure to men and women on
the inside, who rebelled against, and in subtle ways worked to
undermine, what they deemed threats to the nation’s fundamental
institutions.Those military commissions, established by presidential order,
were assigned to try terror suspects on the basis of evidence and
procedures that would never hold up in either a court martial or a
federal court. The most frequent and dramatic problems arose when
the president’s men determined to use the fruits of coercive
interrogation techniques—torture, in the eyes of many within the
military justice system—as evidence in a tribunal. Yet the
commissions never did become kangaroo courts. You can give part of
the credit for that to the unexpectedly assertive federal courts,
and part to an occasionally assertive Congress. But Bravin shows,
in fascinating and often dramatic detail, how members of the
security agencies and the military pushed back against the changes,
effectively thwarting the president’s men. Officers on the ground
turned out to have minds and principles of their own, and those
principles frequently conformed more precisely to constitutional
values than those of their superiors.Marine Lt. Col. Stuart Couch,
for example, is an ROTC lawyer who repeatedly refused to prosecute
terrorist suspects whom he concluded had been tortured by CIA
agents. And Navy Lt. Commander Charles Swift, the lawyer appointed
by the Pentagon to try to wrest a guilty plea from captive Salim
Hamdan, ignored his marching orders and instead advised his client
to fight rather than engage in a plea bargain. The ultimate result
was the Supreme Court opinion in Hamdan v. Rumsfeld
(2006), which imposed legal constraints on the Bush
administration’s program for trying alleged terrorists by military
commission.Thanks to Lt. Commander Swift and the Supreme Court, Hamdan, who
had been Osama bin Laden’s chauffeur, received a fair trial. The
government charged him with terrorist conspiracy and with providing
material support to terrorists, essentially attempting to hold
Hamdan responsible for the actions of his employer. Because of the
absence of evidence that Hamdan did much of anything other than
drive the boss around, the prosecution tried to fill in the gaps by
calling an expert witness, Evan Kohlmann. For the munificent sum of
$25,000, Kohlmann lectured the military jury on the horrors of the
Al Qaeda terror network. Both civilian and military prosecutors
frequently call on Kohlmann, whose credentials are scant, to
frighten jurors with his vivid narratives. (Disclosure: Kohlmann
brought his dog-and-pony show to a trial in federal district court
in which I served on the defense team.)The military jury proved itself immune to these scare tactics
and to the government’s overwrought theories of culpability. It
acquitted Hamdan on the conspiracy count. It convicted him on the
charge of material assistance, but instead of the life sentence the
prosecution hoped for it gave him five months and eight days after
crediting timed-served awaiting trial. (This past October, after
the cut-off date of Bravin’s narrative, the U.S. Court of Appeals
in Washington overturned even that conviction, holding that the
international law of war did not deem “material support for
terrorism” to be a war crime.)Bravin gives a bit too much credit to the Supreme Court for
standing up to the Bush administration’s assault on the writ of
habeas corpus. While the court dutifully held that Guantanamo
prisoners were entitled to challenge their incarceration via the
writ, its
prescription for the content of habeas hearings was rather watered
down. But this is a minor quibble in the face of a remarkable
job by one of the news media’s most persistent reporters on matters
of law and national security. Bravin penetrated a system designed
for railroading prisoners in near-total secrecy, and he
demonstrated the persistence of many ordinary—and some
extraordinary—Americans’ visceral devotion to such quaint notions
as the presumption of innocence and the rule of law.

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Preserving Justice By Saying No

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