Wednesday, December 05, 2007

Ecce Salvator venit solvere te a vinculo

Leva Jerusalem oculos, et vide potentiam regis:
ecce Salvator venit solvere te a vinculo

Lift your eyes, Jerusalem, and see the power of your ruler.
Look to a Savior who shall break your bonds.

--Monastic Liturgy

This article was written before the hearing before the Supreme Court today. If no transcript of that story is provided by NPR, listen to the story (available at the same link) if you haven't already. (Thursday morning: the Nina Totenberg report is available in print now.) It is worth listening to if only to hear the arguments of counsel before the Court today. I went to the story link hoping to get a transcript of the argument of one lawyer who told the story of a detainee in Gitmo who finally, after a few years, found out he was allegedly associated with a terrorist who had blown himself up. His lawyer tracked down this alleged terrorist, who is alive and well and living in Germany, and who is not a terrorist at all. Nor was the detainee associated with any terrorists; but without a habeas hearing in Federal court (where this evidence came out), he'd still be in Gitmo, because that evidence is not allowed under the "CSRT's" set up by the Detainee Treatment Act (the one which may, or may not, have removed jurisdiction from the Supreme Court in this matter).

Keep that in mind while you read this:

"I've been down to Guantanamo 12 times. I've seen this evidence. This evidence is the flimsiest stuff you have ever seen. It's a joke," Wilner said.

With less colorful language, that is the same thing that two officers have now said in affidavits.

One, Lt. Col. Stephen Abraham, was for six months in charge of seeing to it that exculpatory evidence was transmitted to the tribunals from intelligence and defense agencies. He says in his affidavit that the evidence seen by the tribunals was incomplete, dated and inaccurate, and that the officers serving on the panels were not able to question or test it.

"It's not that truth was never a goal. But it was the first victim," Abraham said.

Abraham, an experienced intelligence officer, says that most detainees have names that are extremely common in their part of the world. And, that the U.S. has little or no knowledge as to whether to use a typical name. For example, do we have the right Mohammad Assam in custody?

"The odds are nil that they will have information about him. They may have lots of material on the other 57 Mohammad Assams from his region and the other 3,000 worldwide. So what you're going to get is every single report dealing with Mohhman Assam, Achmed Assam, Muhammad Asahma," said Abraham. "You get literally a dozen name variants. God help the person who had the same name as a famous person because all that information would be ascribed to him and presumed to be valid."

The lawyers representing the detainees all have stories to tell.

In the case of the Bosnians, the Supreme Court brief recounts a CSRT hearing where a detainee is charged with associating with an unnamed al-Qaida operative. The transcript of the hearing shows the detainee asking who he was supposed to have associated with. But the tribunal chairman says he can't tell him because the name is classified.

After much back and forth the frustrated detainee says, "Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe he was on my team. If you tell me the name, then I can respond and defend myself. Otherwise," he says, "all I can tell you is that I am not al-Qaida."

Another of the Bosnians sought to defend himself by asking the tribunal to look at the decision of the Bosnian Supreme Court ordering his release. But the CSRT panel concluded the decision was "not readily accessible," even though it had been filed in federal court and given to the government.

Abraham said that even when a detainee does manage to win at a hearing, the tribunal is ordered to conduct a new hearing — as many as three or four times — until the detainee loses.
And the excuse for this? "We're from the government. Trust us." No, really; that's it:

David Rivkin, who served in the administration of President George Herbert Walker Bush, said that if you nudge the system to provide a higher level of scrutiny "we wouldn't be able to hold most of these people; not because they're innocent, not because they're the wrong Abduls, but because in war you rarely have this kind of information."

Moreover, he notes, if something is really wrong at a CSRT hearing, the detainee can appeal to the Washington, D.C., Court of Appeals under the new law passed by Congress.
Well, that's true; but Mr. Rivkin negelects to point out that, under that same statute, the D.C. Circuit has no power to release anyone; because under the statute, federal courts have no habeas jurisdiction.

That's some catch, that Catch-22.

You know, one of the pleas of the Psalms, and even of Advent, is for justice. And, of course, it is the season when the church contemplates the "great and terrible day," the day of the Lord. A day made less terrible for those who already live by justice and mercy.

Juste et pie vivamus, exspectantes beatam spem,
et adventum Domini.

Let us live by justice and by mercy
and wait with bright hope for the Lord to come.

--Monastic liturgy

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