November 20, 2006

The Torture Train Derailed, Part 2

Hamdan, eponymous player in Hamdan vs. Rumsfeld, was not actually adjudicating issues of torture in his lawsuit. He didn't have the luxury, nor indeed the means, for that. The Bush Administration, with the crafty assistance of such Cassius-like characters as Sen. Lindsey Graham of South Carolina (who always wants to give the appearance of being morally right while never relinquishing his alliance with evil power - truly a villain Shakespeare could have worked with), has pretty much obliterated all "conditions of confinement" claims any hapless Gitmo POW might come up with. We can't let them "clog the courts" with frivolous litigation about substandard conditions of confinement. That is the exclusive province of jailhouse lawyers operating on American soil, and there's just no room left for the prayer-rug crowd. Nope, Hamdan's lawsuit, pressed by Michael Ratner and those other troublemakers at the Center for Constitutional Rights, was more desperately critical: he wanted a fair trial. His life was on the line. Could they use unsubstantiated hearsay against him? Coerced confessions? Could he personally confront his accusers? Just how stacked was the deck against him?

Back in the old days, when the only good Muslim was a Muslim you never heard from again, Bush had set up his military kangaroo courts with his usual casual disregard for legal niceties, such as evidentiary rules against hearsay or anything else that an occasional viewer of "Perry Mason" or "Boston Legal" might take for granted. He did not attempt to incorporate the legal protections afforded American soldiers under the Uniform Code of Military Justice (UCMJ) in courts martial. He saw no problem with the admissibility of coerced confessions. If Ahmed didn't do it, why did he say he did? And in any event -- and here's the crux of Bush's entire philosophy of Guilt By Declaration: they're all guilty anyway, which is why they're locked up in the first place.

I would defy anyone to find any extended discussion or comment by George W. Bush, at any time or any place, about the "presumption of innocence" to which any defendant, American or foreign, is nominally entitled under the American system of justice. Try to discover a single instance, search your memory -- when and where did George W. Bush ever say, "Well, on the face of things, as a starting point, we don't even know if a single inmate at the Guantanamo detention facility is guilty of anything, since no one has ever been brought to trial. We begin with the presumption they are actually all innocent."

He never talks that way. It never crosses his mind that Arabs and others held at Gitmo, some for periods now nearing 5 years, are entitled to any kind of consideration, to any kind of legal avenue for reviewing the merits of any case against them. Maybe they were simply in the wrong place at the wrong time, maybe they aren't terrorists, maybe they never took up arms against the United States at all. The main purpose of judicial review (such as habeas corpus), at an early stage of detention, is to make certain that someone is being held on at least the basis of prima facie guilt, so that the de facto imposition of punishment, confinement for a term of years, is not meted out regardless of guilt or innocence simply because no means of redress is available.

Bush loses no sleep over any of this. Anyway, he has a fallback position. If the detainees aren't guilty of, or chareable with, any "crimes" against the United States, nevertheless they are "prisoners of war" who have been removed from the battlefield. That's where we found a lot of 'em: on the battlefield. Ergo, they're enemy soldiers who can be held until the "cessation of hostilities." When will the hostilities end? Well, how much time you got? The war against terror, as Bush has admitted, will never end. When you're fighting a noun instead of a nation or named adversary, it's difficult to have that deck-of-the-Missouri moment. The confinement at Gitmo, therefore -- also open-ended.

In that sense, Hamdan was one of the lucky ones. They charged him with something. He got his case heard, and although the Supreme Court ruled that the "conspiracy" charge against him was not a war crime cognizable in a military commission trial, the bare bones of a case could go forward against him. He could have a day in court.

Just not in any court Bush had set up as of the date of the Hamdan decision. That was the crux of the decision, the gravamen of the Court's holding. Bush's improvisational approach to criminal justice just hadn't produced anything compatible with Common Article 3 of the Geneva Conventions.

And how, exactly, had Bush's quick knock-off of a trial system for Gitmo detainees run afoul of Geneva? It didn't meet this criterion:

d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Reflect on that for a moment. Bush had devised a method of trial which did not measure up to the basic requirements of the civilized world. So it was back to the drawing board, since the Bush team now knew that Common Article 3 applied to Osama's hack. Of all the...and, hey, wait a minute! If the Geneva Conventions apply to this guy, then that means...