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A Heavy Thumb On The Scales

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Tim Golden in the NYTimes describes the "process" of review for detainees at Guantanimo:

The prisoner had seen just a brief summary of what officials said was a thick dossier of intelligence linking him to Al Qaeda. He had not seen his own legal papers since they were taken away in an unrelated investigation. He has lawyers working on his behalf in Washington, London and Pakistan, but here his only assistance came from an Army lieutenant colonel, who stumbled as he read the prisoner’s handwritten statement.

As the hearing concluded, the detainee, who cannot be identified publicly under military rules, had a question. He is a citizen of Pakistan, he noted. He was arrested on a business trip to Thailand. On what authority or charges was he even being held?

“That question,” a Marine colonel presiding over the panel answered, “is outside the limits of what this board is permitted to consider.”

Under a law passed by Congress and signed by President Bush in October, this double-wide trailer may be as close to a courtroom as most Guantánamo prisoners ever get. The law prohibits them from challenging their detention or treatment by writs of habeas corpus in the federal courts. Instead, they may only petition a single federal appeals court to examine whether the review boards followed the military’s own procedures in reviewing their status as “enemy combatants.”

But an examination of the Guantánamo review boards by The New York Times suggests that they have often fallen short, not only as a source of due process for the hundreds of men held here, but also as a forum to resolve questions about what the detainees have done and the threats they may pose.

Some limitations have long been evident. The prisoners have no right to a lawyer, or to see classified evidence, or even to know the identity of their accusers. What has been less visible, however, is what many officials describe as a continuing shortage of information about many detainees, including some who have been held on sketchy or disputed intelligence.

Behind the hearings that journalists are allowed to observe is a system that has at times been as long on government infighting and diplomatic maneuvering as it has been short on hard evidence. The result, current and former officials acknowledged, is that some detainees have been held for years on less compelling information, while a growing number of others for whom there was thought to be stronger evidence of militant activities have been released under secret arrangements between Washington and their home governments.

Every day, I pick up the newspaper and feel like we have been thrown into some Kafkaesque nightmare. Today is no different. This is being done in the name of the United States. In all of our names.

To make matters worse, those Chinese Uighyars, who had already been deemed to have been picked up erroneously and innocent of charges? Seventeen of the 22 are still being held (with five finally having been sent to Albania in May as political refugees), and according to the NYTimes, forced back through yet another hearing procedure…which looks an awful lot like CYA to me, and not at all like justice. Appalling.

But in the Bush Administration, standing up for the rule of law and the Constitution gets you the boot.  I am here to say right here, right now, that whatever it takes, the rule of law will be restored.  Whatever.  It.  Takes

Is it January yet?  Because I'm not sure my blood pressure can wait much longer…especially reading something like this:

…Yet intelligence officers at Guantánamo found ambiguity everywhere. Many of the detainees had been captured by Afghan militias, Pakistani border guards and other surrogates, and some had been turned in for bounties, intelligence officials said. Information about their identities and actions was often vague and secondhand. Physical evidence, if any existed, was sometimes lost before reaching Cuba.

Still, the detainees who were held on the weakest information tended not to be a priority for either intelligence officers or the military’s criminal investigators….

Lawyers at the Defense and Justice Departments had another worry: that detainees found to be “not enemy combatants” might sue the government for wrongful imprisonment. Partly for that reason, officials said, the review office was instructed to use the phrase “no longer enemy combatants.”

By the time the C.S.R.T. reviews got under way, intelligence agencies had confirmed that half a dozen detainees released from Guantánamo were fighting for the Taliban in Afghanistan. Such risks were raised frequently in government debates.

“It was sort of a mantra in the system: ‘You have got to make sure that you don’t release any of the wrong people,’ ” recalled Charles W. Moore Jr., a now-retired vice admiral who set up the review apparatus under Mr. England….

The lawyers respond that the obstacles to their input in the process raise questions about the military’s desire to learn everything it can about the detainees. More than a week after the hearing for the Pakistani businessman accused of ties to Al Qaeda, a Washington lawyer who had been trying to help him told a reporter that he had not even known the session had taken place.

“There is no hint of any kind of due process in this,” said the lawyer, Gaillard T. Hunt. “He’s got no right to an investigation. But substantively, it really doesn’t matter, because they can always just say they have this classified information that he can’t see.”

Whatever it is that the Bush Administration and the military are pretending to do with this, one thing is abundantly clear to me: it is CYA which is the top priority, and to hell with honesty or integrity within the system, and to hell with the rule of law and the fact that a number of innocents may be held while the Bush Administration negotiates for time and whatever else it is they may want from another government with the release of someone who actually may be dangerous and goes right back out of Gitmo to attack our soldiers.

Does this make sense — honestly make sense — to anyone?  On some level, of course it does: the prisoners who have any value are the ones who are guilty — they have violent people who are more than happy to pull strings for them back home to pressure for their release, with politicians in their home nations in their pockets who are happy to help for some money and promises of fewer attacks in the near future. The innocents have only their families, some of whom because the prisoners have had no real means of contacting folks back home, have no idea that their family member is held alive at all.

And this is all okay with the Bush Administration?  Just peachy keen and pass the sweet potatoes, is it, rule of law be damned, decency be ignored altogether?

Explain that to the 906 American soldiers who were killed in Afghanistan and Iraq in 2006, George.  And explain that to a public that expects you to do your job instead of just cover your ass — and explain how it is that  a President who swore an oath to uphold the Constitution and the rule of law as a part of his primary duties at the helm of this nation can so contemptuously dismiss that duty without so much as a backward glance?  Because show hearings, show trials, and farcical representation without evidence, without investigation and without any hope that someone involved in the government's end of the case gives a rats' ass about the truth is a disgusting sham.  And when you add in the indecency of the removal of any ability for review by a third party — no due process, no right to habeas, nothing — but for the fiat of the President…you do not have to go far to understand that the predetermined CYA outcome has already been predicated on the fact that many of these people have no one — NO ONE — to speak for them.

The sacrifice of the powerless and often innocent on the alter of Presidential reputation, PR machinations, and public opinion tirades.  How exactly do you sleep at night, Mr. President?

We ought to be so much better than this.  When we are committed to the rule of law, our nation rests on a firm foundation of the search for truth, for justice and for equal treatment in the eyes of all.  When we walk away from that commitment, we set ourselves up for the dictatorship of the few — something over which we already fought one revolutionary war against a King George in the not so long ago and back to which we as a nation should never, ever go — and I, for one, am looking forward to Pat Leahy and John Conyers reminding you of that very fact come January.  

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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