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Bucking The Tide: An Al-Marri Surprise

We know the backstory: secrecy and legally incompetent boobery masking wholesale gutting of the rule of law.

But something in Jane Mayer’s most recent reporting on the al-Marri case made me pause:

Unlike the staff at Abu Ghraib, the brig staff had been trained for the job. Their mission, as they saw it, was to run a safe, professional, and humane prison, regardless of who was held there. It was the political appointees in Washington, at the Pentagon and the Department of Justice, who wanted Marri to be kept in prolonged isolation. In 2005, Savage discovered that the head of security at the brig, Air Force Major Chris Ferry, “would stay all night with Marri. He’d go down to the brig and sit with him, and tell him to hold on. Chris was there at three in the morning, on the darkest nights.”…

During the Bush years, officers who questioned unlawful orders or demands from Cheney’s goon squad found themselves quickly cashiered. (Shinseki ring a bell?)  But UCMJ requires rejection of an unlawful order.  This was brave.  And decent.

I’m not naive.  Al-Marri is likely no saint.  Most criminals aren’t people I want running around to freely create chaos, which is why I spent a portion of my life sending them to jail.   

But there is a right and wrong way to pursue justice.  And what we have done was entirely, tragically wrong.

The UCMJ requires humane treatment of prisoners in military custody.  Marty Lederman detailed background previously, but it’s well worth re-reading for this:

The Pentagon understood that federal statutory law — the UCMJ — stood in the way of what it wished to do, and rendered unlawful what it already had done in the case of al-Qahtani. It had in its back pocket, however, the legal immunity conferred by the Department of Justice’s authoritative legal opinion (PDF) that the President has the absolute authority, pursuant to his Commander-in-Chief power, to determine "what methods to use to best prevail against the enemy," notwithstanding any statutory restrictions that Congress may have imposed. (emphasis mine)

Where we failed was in disregarding our hardest-earned lessons, shrinking from the shadows of giants like Robert Jackson at Nuremburg:

…The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

With great power comes a far greater responsibility to the rule of law and ethical conduct. By striving toward justice, we do more good than pettiness or fearful swipes ever could — we become lesser for our misconduct. A grave error we cannot afford to keep making.

That we have fallen so far that decency surprises?  That should give us substantial pause.  

(H/T to MadDog and Jkat.)

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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