alice-queen-hearts.JPGFrom an op-ed in the Miami Herald from James Ross of Human Rights Watch:

It’s not every day that a 26-year veteran in U.S. military intelligence puts his career on the line by publicly criticizing a high-profile operation. But Lt. Col. Stephen Abraham, an Army reservist and lawyer, did just that last week in a Supreme Court affidavit that challenges the court’s refusal to hear the claims of Guantánamo Bay detainees.

Abraham spent six months in 2004-2005 as a panelist on the Combatant Status Review Tribunals, or CSRTs, at Guantánamo, which were created to determine whether individual detainees were ”enemy combatants.” His statement, claiming that determinations were based on outdated, generic intelligence that was rarely case specific, captures the extent to which the Bush administration has been willing to ignore if not manipulate the facts in pursuing the ”global war on terror” — even if it undermines those very efforts.

The CSRTs are not a requirement of the Geneva Conventions or a long-standing U.S. military practice. They were concocted by the Defense Department nine days after the Supreme Court ruled in June 2004 that Guantánamo detainees had the right to challenge the grounds for their detention in court through habeas corpus, the time-hallowed Great Writ that protects against unlawful and indefinite detention.

To date three-member military tribunals at Guantánamo have processed the cases of 572 detainees. Only 38 were found not to be enemy combatants. Unlike habeas proceeding, where the burden is on the government to show that the detention is lawful, the CSRTs required the detainee prove he was not an enemy combatant. And the CSRT rules prohibited the detainee from having the assistance of a lawyer or seeing most of the evidence against him.

But it turns out that the military panelists had not much more access to the evidence than did the detainees. Abraham says his repeated requests for information that would shed light on specific cases were routinely rejected. ”What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” he stated….

It’s now clearer than ever that the Pentagon used the CSRTs to paint a veneer of legality over a largely predetermined decision. If this isn’t troubling to the Bush administration, it should be to the American public. Not only are people being held for years unjustly, but the military’s efforts and resources are being misdirected from those who really have the intention and means of doing the country harm. Adding these dubious panels to the Guantánamo mix of indefinite detention, abusive interrogations and unfair military commissions, and it’s not hard to understand why the U.S. has received less than full support from its allies in the fight against terrorism.

Instead of trying to fix a CSRT process that is fundamentally flawed, the federal courts should be hearing the detainees’ habeas petitions. But a ”court stripping” statute blocks the way. Under the Military Commissions Act rushed through Congress last fall, the courts are prevented from reviewing habeas petitions brought by Guantánamo detainees or other nonnationals held abroad. By tampering with a fundamental right that dates back to the Magna Carta, the act threatens the protections against unlawful detention to which we are all entitled.

Several bipartisan measures are now before Congress that in one form or another would restore habeas to the Guantánamo detainees. That is important and necessary. But the Bush administration need not wait for a new law to be enacted. Abraham showed forthrightness and courage by publicly raising his concerns about the CSRT process at Guantánamo — perhaps at the expense of his distinguished army career. The administration could show similar fortitude and take steps now, rather than later, to restore an independent check on detentions and ensure that the United States is no longer holding anyone outside the pale of law.  (emphasis mine)

In case anyone has any doubt as to why the restoration of habeas rights is important, this is why. And no matter how many times the Bush-Cheney apologists deploy folks like the “torture twins” to editorial pages nationwide, it does not negate this simple fact:  every time we bend our laws to enable previously illegal behavior that was once considered so beyond the very boundaries of civilized behavior that we put the Germans and the Japanese on trial for war crimes for it during WWII, we debase our nation and become the very ideology that we pretend to be fighting.  And that is both unconscionable and immoral. 

We are better than this. And it is high time we started acting like it instead of looking the other way.

For more on how we got here in the first place, take a peek at this walk through from Balkinization.  And more from Glenn.

Lynn Olson finishes a WaPo op-ed comparison of George W. Bush to Neville Chamberlain with a quote from Winston Churchill that is particularly applicable here:

But history has its own ways, and we cannot make the long-dead titans we admire give us their modern blessing. As the world’s two most prominent and powerful democracies, the United States and Britain had a responsibility to serve as exemplars of democracy for the rest of the world, Churchill believed. But to be fitting role models, he argued, both countries had to do their best to ensure that the “title deeds of freedom” were strongly safeguarded within their own boundaries. “Let us preach what we practice,” he declared in his 1946 “Iron Curtain” speech in Fulton, Mo. “But let us also practice what we preach.”  (emphasis mine)

Sentence first, verdict after is not who we should be. Ever.  Let us all stand up and insist that we live our national values and practice what we preach to others. Now.

(Illustration of the Queen of Hearts and Alice from the work of Sir John Tenniel.  This is one of my favorite illustrations from the books, and such a depressingly perfect visual of what we are doing in Gitmo.  H/T to reader WB for the Miami Herald link.)

Related posts:

  1. Guantanamo: When Justice Meets “Evidentiary Thresholds”
  2. Innocence Ended: Uighurs Still Seek Fair Day in Court
  3. Jawad, Ghailani Cases Challenge US Torture Under Rule of Law
  4. Gitmo: Obama Considers Gutting UCMJ Protections — For What?
  5. Supreme Court Will Hear Uighur Case