Due Process Indeed!

Andrew Cohen at Bench Conference in the Wapo has a take on due process, or not, at Gitmo, and as ususal he does not disappoint all us crazy “Civil Liberties” types.

Here is his “snarky” post on the Combat and Status Review Tribunals based on evidence of course:

Abbott and Costello Go to Gitmo

The following Buchwaldian dialogue is entirely fictional (except where the quotes appear) and the procedures used in real life are different from those depicted here. But the gist of the conversation, and the information contained in it, is real (the satire is my own, of course). In early 2005, a federal judge issued an important terror law ruling that shed a focused beam of light upon how our government is handling the detainees down at Guantanamo Bay in Cuba. And, twice this year, Seton Hall University studies have taken declassified military records of the Combatant Status Review Tribunals--the initial hearing given to detainees at Gitmo to determine their status--and revealed the sheer scope of the legal farce that has been sold to us as due process. What follows below is based upon that information.

Prosecutor: Judge, we would like to try this detainee again because the first time we did so we did not get a result we wanted.

Judge: Wait a minute. I am looking at the record and I see that you are asking to put this detainee on trial for a third time. Are you saying that twice before you have been unable to come up with a satisfactory result--a designation that this man is a terrorist- so you want a third crack at it?

Prosecutor: That is precisely what we are saying, sir. And by the way, even though we are using declassified information against the detainee we do not want him to be able to use it, or even see it, himself. Can't be too careful about giving these terrorists too much information.

Judge: But of course so far we don't know that he is a terrorist, right? I mean the first two tribunals certainly didn't get us that far. But don't worry. I am going to grant your request to undertake a third Combatant Status Review Tribunal for this man and I'm also going to allow you to continue to withhold from him the declassified information you say you want to get him classified as a terrorist. Of course, I already have told you that the detainee may not have access to or use any classified information that you say you have against him.

Prosecutor: Thanks, sir.

Judge: And, just so you know, for this third trial, as with each of the other two, I am determining that the classified evidence you intend to offer against this detainee is reasonable and valid even though the means by which you obtained the information is suspect. But remember that I am only going to allow the detainee, if he is lucky, to submit to this tribunal in his own defense letters from family and friends. Since the detainee doesn't get to have a lawyer, and since his "personal representative," whatever that means, isn't going to exercise his right to comment upon our ruling anyway, I'm sure you will find this satisfactory.

Prosecutor: Yes sir. There is one more thing, sir. We are accusing another man of being associated with Al Qaeda because we believe that he knows someone who is a member of Al Qaeda. But when we asked him to confirm this for us he told us he couldn't.

Judge: Why not?

Prosecutor: He said he could not tell us whether he knew the Al Qaeda member because we would not and could not give him the name of the Al Qaeda member.

Judge: Well, why couldn't you or wouldn't you tell him the name of the person you were accusing him of knowing?

Prosecutor: Because that's classified, sir. We were only able to share with him information on an unclassified document and that information did not contain the name of the Al Qaeda member we believe the detainee knows.

Judge: But how can it be classified if you are convinced that he knows the person anyway?

Prosecutor: I can't answer that question, sir. That's classified.

Judge: Well, what exactly did the detainee say?

Prosecutor: He said "I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation."

Judge: What else did the detainee say? I see here that we believe that he is suspected of planning an attack on the U.S. Embassy in Sarajevo.

Prosecutor: The detainee said: "The only thing I can tell you is I did not plan or even think of (attacking the Embassy). Did you find any explosives with me? Any weapons? Did you find me in front of the embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it just very little, that proves I went to the embassy and looked (at) the embassy, then I am ready to be punished."

Judge: Let me ask you. Based upon what you've determined so far, after five years, how many of these detainees do you believe are members of Al Qaeda or the Taliban or otherwise were inclined to take up arms against America?

Prosecutor: Well over 200 detainees were determined not to have committed a hostile act against the United States. And only eight percent of the detainees have been determined to be "Al Qaeda fighters" while 40 percent of the men had no connection with Al Qaeda and 18 percent had no connection with either Al Qaeda or the Taliban.

Judge: But there are well over 400 men here. What are they still doing here if those determinations have been made?

Prosecutor: I don't know, sir. That's classified.

Now this is snarky to be sure, but it is serious as a heart attack!

So, the question to be answered is: say you were an American detained by some unnamed country and this was your fate, my guess is that you would think that you had been dragged into a Kafkaesque drama and find it totally unjust? So, then why is it that this is happening in the United States and you and yours are not outraged?

What are you doing about this?

Or are you a good German circa 1933?