Kangaroo Justice

The Talking Dog has posted another one of his interesting interviews with attorneys for alleged unlawful combatants, this one with Joshua Dratel, the lawyer for the Australian David Hicks, who is being held at Guantanamo. Read the whole thing, but this passage is particularly stunning:

Talking Dog: Can you briefly summarize what you in particular find unfair about the military commission process at Guantanimo?

Joshua Dratel: Basically, there are no rules. The Uniform Code of Military Justice, which governs court-martials -- that's been thrown out. No standards at all. Total arbitrariness. No efforts at anything resembling fairness. Let's start with evidence and proof. People don't know this, of course.The government's "proof" consists entirely of interrogators reading from reports of their interrogations-- without any basis to challenge the underlying accounts of witnesses, such as the witnesses themselves (who have frequently been shipped out of Guantanamo) or their interpreters, or the conditions under which the statements were taken, which were frequently, to put it politely, "coercive." Just statements from the detainees themselves-- regardless of whether obtained from abuse, or coercion, even rising to torture. In the commissions, you simply can't challenge them-- you don't have access to the witnesses.

Talking Dog: I understand you spent a fair amount of time challenging the panels and their members themselves.

Joshua Dratel: I'm glad you brought that up. That's another area of unfairness. In a military felony case-- that's any case where the penalty might be more than one year in prison-- and remember that these detainees might get life in prison or even death sentences-- you need at least 5 panel members under the UCMJ. Under the commissions arbitrary set-ups, they envisioned between 3 and 7 panel members. In David's case, they planned 5 panelists and one alternate. But we challenged the panelists, for a variety of reasons, and 3 challenges were granted. We thought they would appoint 2 more officers to bring the panel back to 5, but they didn't. Now this makes a huge difference. And that's because under military rules, you need a 2/3 vote for conviction. On a 5 member panel, that means you need only coNvince 2 out of 5 for an acquittal; on a 3 member panel, of course, its 2 out of 3... a much higher burden, and not one required by the UCMJ. Conversely, the government's burden is halved: while it needs four of five votes to convict in a five-member commission, it needs only two in a three-member commission.

And then we get into the issue of the fact that in a court-martial,there is one judge, and the panel acts as kind of a jury. Under this set-up, the whole commission was supposed to make rulings. Of course, they had no legal training (except for one officer, Colonel Brownback). But the panelists couldn't absorb certain basic legal concepts-- such as 'ex post facto" and "jurisdiction". For example, if a citizien of Country A (we'll call it "Australia") is fighting in Company B (we'll call it Taliban Afghanistan) against Country C (we'll call it the Northern Alliance of Afghanistan), in Hicks' case, supposedly he was in a fox-hole guarding a Taliban tank position or something, before he was picked up by the Northern Alliance, then how does Country D, the United States, get jurisdiction over him? I mean, the United States has no jurisdiction over Hicks and his alleged actions-- completely lost on this panel. Of course, the panelists' response was "you mean he just gets away with it?" But the crimes he is accused of were not war crimes-- he was not even accused of shooting at soldiers-- as if that were a war crime, which it is not. At worst, it was either a domestic offense (like treason) in Afghanistan, or acting as a soldier of a military, in which case, he wouldn't be guilty of a crime at all, but a combatant subject to the Geneva Conventions. Also, of course, the evidence also is illegitimate because of the manner in which it was obtained-- all consisting of statements of detainees made under coercive interrogation or even torture. At the motions argument, we wanted to call witnesses who were experts on international and military law. But the panel didn't want to hear any of them.

Finally, of course, Rumsfeld has controlled the appeals process by stacking it with his own hand-picked cronies. The objections to the process are not just procedural. The government's entire case against everyone is based on interrogations of other detainees. Nothing else.


Even the Star Chamber was mostly made up of actual lawyers and judges. As we get farther and farther away from 9/11 doesn't this stuff seem crazier and crazier? I always thought that we behaved like a dumb wounded giant lashing out indiscriminately, but as time went on I assumed that we would pull ourselves together and begin to behave rationally. But we are not. Guantanamo is a gulag.

One other little bit of the interview I'd like to highlight is this:


Talking Dog:
Do you think that by and large the American people
really care about this issue at all, and why do you think that is?


Joshua Dratel:
They care about some of these issues in the
abstract, but they have no idea how things are being done at Guanatanamo. These are not proven terrorists. There has been no determination of any value at all. You would hope that Americans would care about torturing the innocent. Certainly, there would be concern for OUR personnel in the hands of another nation. I'll tell you that the military people are very concerned. They are concerned about the reciprocal effects of our runnning a process that isn't fair, or capable of making objective determinations, even if no Americans are subject to them. But think about when it's our personnel-- such as when Private Lynch was captured-- how we demanded that she and others be treated per the Geneva Conventions. In the future, how can we make demands like that with a straight face-- or will others pay any heed when we ignore the conventions and flout the rules ourselves?


I don't think people give a damn, or at least most people. The Pew Poll released this week found:

Republicans have succeeded in attracting two types of swing voters who could not be more different," the study reports. "The common threads are a highly favorable opinion of President Bush personally and support for an aggressive military stance against potential enemies of the U.S."


Bush voters are just fine with torture, probably even of other Americans, but particularly of "the enemy." And I doubt that they have any problem with the double standard of saying that you may not torture ours, but we can torture yours. God is on our side, after all, not theirs.

As you know, I'm gifted with from time to time by e-mails from a right winger. Here's what he had to say about torture recently:

On Sunday night "60 Minutes" did its 10th liberal anti-American segment in a row about the war in Iraq. This time it was about how we torture people at Guantanimo (GITMO.) The explosive incident in question, to which there was a direct and credible witness, involved using an American woman to sexually humiliate, in theory, sexually repressed Muslim prisoner.

The fist logical response to this has to be: if it were me or my son I'd thank God loudly and eternally to have such complete wimps as torturers. Second, the American version of torture might even be fun. Indeed, American torture is often, although I'm sure not always, a joke. We saw it in Abu Ghraib. In the same prison where Saddam Hussein would make movies (now for sale world wide) of his guards slowly cutting off the tongues and limbs of fully conscious human beings, or breaking as many bones as possible with a club, again on a fully conscious human being, the Americans would make their prisoners get into a gym class style human pyramid (no mat to cushion their tender knees), and, they would be naked too, as if to really insure that the torture was really really severe. Again, all a rational person can say is: if it were me or my son I'd pray to God to be imprisoned by the very gentle and civilized Americans.

The above, of course seems obvious to a monkey, although it is apparently not so obvious to a liberal. But it does give rise to another important question: why do the liberals devote more time to their delirious idea that is worse to torture someone, American style, than to kill him on the battlefield? After all, we are killing a lot more people in this war than were ever made to wear female underwear at Abu Ghraib? On the battlefield you die, and often very slowly and painfully. If the bullet hits you in the heart you are very lucky. More likely an Iraqi insurgent will be severely wounded by a bullet or explosion that leaves a significant part of his body on the battlefield, and only then will he slowly bleed to death or slowly be infected to death. This is far worse than a gymnastics class, in women's underwear no less, at Abu Ghraib, and yet it gets less attention from the liberal press?

I suppose the liberals prefer to focus on torture because it plays upon a universal subconscious fear of genuine torture that we all share. It is highly manipulative, and fraudulent though, to influence foreign policy in this emotionally deceptive way. Real thinking should prevail, not liberal blather. What remains inexplicable is that liberals largely ignore our real torture. When we pick up a high level al-Qaida official such as al-Libby who almost certainly has information on upcoming attacks on Americans, we obviously torture him, for real, to save lives, but this remains mostly off the liberal radar screen; perhaps because it is obviously necessary and obviously too nasty to talk about? Liberal outrage at the sex play at Abu Ghraib makes the point almost as well while being far more palatable to a broad audience.


He goes on to say that torture becomes problematic because the interrogators can't keep their mouths shut so it lets the enemy know what they will need to withstand (and gives liberal traitors ammunition) thus ruining the whole torture scheme. I don't know how many people there are like this in the country, but you can be pretty sure that all of them who voted, voted for George W. Bush. One expects this kind of talk from wingnuts.

But I also have to suspect that some version of this "tortured" logic was used by those swing voters who were so impressed by Commander Codpiece and his "aggressive military stance." And he knows it:

Q Mr. President, under the law, how would you justify the practice of renditioning, where U.S. agents who brought terror suspects abroad, taking them to a third country for interrogation? And would you stand for it if foreign agents did that to an American here?

THE PRESIDENT: That's a hypothetical, Mark. We operate within the law and we send people to countries where they say they're not going to torture the people.

But let me say something: the United States government has an obligation to protect the American people. It's in our country's interests to find those who would do harm to us and get them out of harm's way. And we will do so within the law, and we will do so in honoring our commitment not to torture people. And we expect the countries where we send somebody to, not to torture, as well. But you bet, when we find somebody who might do harm to the American people, we will detain them and ask others from their country of origin to detain them. It makes sense. The American people expect us to do that. We -- we still at war.

One of my -- I've said this before to you, I'm going to say it again, one of my concerns after September the 11th is the farther away we got from September the 11th, the more relaxed we would all become and assume that there wasn't an enemy out there ready to hit us. And I just can't let the American people -- I'm not going to let them down by assuming that the enemy is not going to hit us again. We're going to do everything we can to protect us. And we've got guidelines. We've got law. But you bet, Mark, we're going to find people before they harm us.



In other words, "don't worry your pretty little heads about torture; we do what we need to do." And the security moms swoon.

I'm hoping that when we begin our great Democratic moral crusade against dirty talk on TV (to show empathy to all these parents who vote Republican because we haven't done enough about Britney and Janet's nipples) that we can find a few minutes to also talk about why torture is wrong. I know it isn't as appealing to the religious among us who are so worried about their children being exposed to sex, but it might just save this country's soul, nonetheless.




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