Scott Horton on why calling the Combat Status Review Tribunal a "kangaroo court" is an insult to kangaroos and the courts they cherish:
A key aspect of the legal architecture of the “war on terror” crafted by the Bush Administration involves labeling all persons seized and held as “terrorist detainees” (look at the telling language used in the letter from Air Force General Counsel Mary Walker, published in this space yesterday, for instance). Under the laws of war, a person seized on the battlefield is presumed to be a lawful combatant and as such entitled to prisoner of war treatment pursuant to article 5 of the Third Geneva Convention. This status can be overturned by a process of administrative review in which a determination is made that the person is not a lawful combatant in which case the detainee has protections under article 3 common to the Geneva Conventions. However, the Bush Administration decided to turn this system on its head, introducing the fiction that “the president” had made the determination that every person seized was an “unlawful enemy combatant.” There was no need for specific evidence or facts about the persons seized. It was conclusively presumed.
Of course we subsequently learned that over 80% of the persons held at Guantánamo had nothing to do with al Qaeda, or any other terrorist group. For the most part they were seized so that their captors could avail themselves of a bounty payment that the Pentagon very foolishly began offering for prisoners early in the war.
They persisted in this nonsense until the Supreme Court declared the process illegal.
But that led to a dilemma. If the person was really a civilian noncombatant, and he had been seized and held for years, subjected to torture and other illegal interrogation techniques, then the U.S. had a problem. Then, of course, what had been done was a criminal act. Indeed, a felony under American law. It was therefore essential to juryrig a system which would guarantee the result they needed to protect themselves from criminal liability.
And so the Combat Status Review Tribunal (“CSRT”) was born. The CSRT has been enshrouded in controversy from its start. To call the CSRT a kangaroo court would be an insult to kangaroo courts; it is far worse than that. Indeed, it would be embarrassing to allow outsiders to actually watch one of these farces in operation. The Pentagon therefore denied journalists and others the right to attend the proceedings, contending that national security secrets were prone to come up. Instead redacted transcripts were to be provided afterwards. And, like clockwork, the Pentagon has produced transcripts which reflect page on end of redactions: the witnesses coming before the tribunals describe how they were tortured. [emphasis in the original]
There has been some writing around the 'net the past couple of days about an affidavit offered by Lt. Col. Stephen Abraham about the CSRT. It was filed in a case urging an appeals court to find that the CSRT is not a meaningful alternative to a writ of habeas corpus. Lotsa luck fellas, lotsa luck.
Lt. Col. Abraham says this in his affidavit:
“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant”…
No to mention that the statements were hearsay, or hearsay to the nth degree.
Spot has said several times that the US does not have the goods on most of the persons at Gitmo. Anyone who has ever tried a case will tell you there is often a vast difference between what you think or wish to be true and what you can establish in a court record to be true. The administration is facing greater and greater resistance to this sham in the ranks of the professional military.
Future generations of law students will study Gitmo, the Military Commissions Act, and the GWOT as part of the raison d'être for the writ of habeas corpus.