The never-ending story, oh I mean detainee cases, continue. See here and here for transcripts and audio. And, here for a flavor of the analysis. Emily Bazelon also had an article on the government's (mis)use of history. For the latter, I had these remarks on the Slate fray:
Various briefs underline that history is not on the side of the administration is different respects. But, this quote [from EB's article] suggests a more telling point:
Finally, the retired officers point out that the stripped-down nature of the CSRTs—defendants also aren't allowed to have lawyers, and in another contradiction of Article 5, the panels are instructed to presume that the government's evidence is "genuine and accurate"—is far less justified because none of the procedures are about battlefield sorting. In the past, the 190-8 tribunals had to operate in the midst of armed conflict, for example in Vietnam. The CSRTs are assessing, with no huge urgency, the status of people who have been held for years and are far removed from any theater of war. Shouldn't the CSRTs be more careful, not less?
Simply put, "history" has not really provided an adequate precedent to what is going on here. Amusingly, 9/11 sometimes supposedly "changed everything," except here. [History, as the Brits determined, also taught us not to use the fruits of torture in court. Also, something about not starting land wars in Asia.] Luckily, habeas corpus and constitutional principles overall (particularly due process of law, also relevant here ... even without habeas, "persons" should have some security against arbitrary process when held in areas under U.S. control ... or can we set up slave camps?) are not set in 1789 or even 1942 stone.
Procedures develop over time based on the wisdom and felt necessities of history. It is asinine to ignore the special nature of this conflict. This is underlined by the lack of "POWs" here (who can be released at the end of hostilities and are innocent of any crime), people quite often not taken off the battlefield with guns in their hands, though some talk as if that is what happened.
And yet the retired officers conclude, "Taken together, these differences show that CSRT proceedings are little more than a facade, without even the substantive protections that ensure compliance with Article 5 of the Geneva Conventions and that invest 190-8 tribunals with legitimacy in the eyes of the world." [EB]
As one human rights attorney notes, there is a Kafka-esque flavor here:
the CSRTs are instructed to ask whether the detainee is "still" an enemy combatant, not whether he ever merited the label in the first place. And in a bizarre formulation, though one that is perfectly characteristic of the CSRTs' approach, any detainee who manages to convince his panel that he is being wrongly held is deemed "no longer" an enemy combatant, rather than simply "not" an enemy combatant.
Reading The Trial also might be useful given "Detainees expressed particular frustration at not being informed of the source of the testimony against them."
One amici brief in this case was written by Israelis reminding that they manage to deal with their much more at home threat without deprival of a fair hearing in court akin to what is happening here. The Brits in the Rasul case also reminded us that it is good to learn from history, in part their less than ideal treatment of the Irish during "The Troubles."
Some wish to argue ala Prof. John Yoo that the Framers wanted the executive to be like George III. So, history can be twisted. But, we can learn from history too and it is an ever developing thing. So, even accepting their slanted view, I say "so?" We have moved on from the past and are in the 21st Century, one in which the policy of the administration, assisted by congressional legislation* is unjust.
And, not acceptable under correct standards of the law of war, international law and justice, habeas corpus, due process and so on.
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* Sen. Specter voted for the deprivation of habeas corpus after saying it was a horrible thing to do. Now he signed on to a brief trying to undo what he helped to promote. Neat trick.