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Down The Rabbit Hole To The Bushworld View Of Rule Of Law

What if you were held, indefinitely, on charges you didn’t know based on evidence you couldn’t see and against which you couldn’t defend yourself and, even through all of that you were somehow found to be not guilty, but you were marched right back to your cell and held indefinitely despite a finding of innocence? Jeffrey Toobin has a disturbing look at Gitmo that paints a grim picture of the topsy turvy version of rule of law in Bushworld. To wit:

…There is only a limited right to appeal, but each detainee receives an annual review of his status in another hearing. “We look at two questions,” Garber told me above the hum of the air-conditioners. “Are they still a threat? Do they still have intelligence value? A yes to either one is enough to keep them.” The tribunals have been widely criticized as one-sided—Eugene R. Fidell, a noted American expert on military law, has called them a “sham”—and, according to Garber, last year only thirteen per cent of the detainees agreed to participate in or attend their own annual review hearings….

…there is a heads-I-win, tails-you-lose quality to the proceedings. If a defendant is acquitted, he need not be released; he can simply be returned to detainee status at Guantánamo, to remain in custody until the end of the war on terror—raising the question of what sort of recourse the proceedings really provide.

We are holding these people indefinitely, with no real recourse to habeas now under the MCA, while George Bush’s "forever war" spins on, incompetently waged, insuring that it will never end. The hearings are more akin to a probable cause proceeding or a grand jury where the defendant is forced to face the jurors while secret evidence is shown to them. As Marty discusses, the SCOTUS has expressly rejected detention solely for purposes of interrogation without a showing of bad acts…and yet, there they are in Gitmo limbo.

With the release of the latest Yoo memorandum, the argument for this Kafkaesque detention sounds even more like a warped Queen of Hearts: "Off With Their Lives, Guilty Or Not." But lawyers for detainees have picked up the accountability banner, and the first defense brief to argue against detention based on faulty Yoo foundational reasoning was filed this week. Via SCOTUSBlog:

In Monday’s filing, Al-Marri’s counsel argued that the Yoo memo “further demonstrates that al-Marri’s detention lacks legal basis.” It notes that the memo has been “repudiated by the Justice Department.” The filing also points out that the government has indicated that President Bush relied in part on the memo in deciding to name Al-Marri as an “enemy combatant.”

“In sum,” the filing argues, “the President designated al-Marri an ‘enemy combatant’ based upon an erroneous legal analysis, and to uphold his detention is to endorse the result of an analysis that even the Justice Department has repudiated.”

As Scott Horton points out, Cheney favorite Jim Haynes — whose stealth campaign to undermine JAG values was waged within DOD — is now under seige to explain his role in the various Yoo memoranda, and potential perjury before Senate Armed Services. As Digby emphasizes, a number of the JAG lawyers have been heroes, standing up to the Bush/Cheney assault on the rule of law and justice from inside the DOD. Those who remained steadfast should be lauded — would that the people trying to tear down the notions of justice weren’t at the highest reaches of our own government. One of those values ought to be standing up for a fair trail — a real one, not some fake Kafkaesque 30 minute sham in a metal trailer.

When the full story of what has occurred behind the scenes of the Bush Administration, the full reaches of their attempts to undermine American values are exposed to public sunshine, even the most cynical among us are likely to be shocked. Can’t happen soon enough…

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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