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If at First You Don't Succeed...

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 15, 2007

More essential reading from Mr. Glaberson at the Times.

The military system of determining whether detainees are properly held at Guantánamo Bay, Cuba, includes an unusual practice: If Pentagon officials disagree with the result of a hearing, they order a second one, or even a third, until they approve of the finding.These “do-overs,” as some critics call them, are among the most controversial parts of the military’s system of determining whether detainees are enemy combatants, and the fairness of the repeat hearings is at the center of a pivotal federal appeals court case.On Tuesday, the United States Court of Appeals for the District of Columbia Circuit begins consideration of the first of what are expected to be scores of challenges to the military panels’ decisions that detainees are enemy combatants and are properly held.

And, crucially, I point you to this little quip from the government’s filing in the case about the justification for this feature of the Combatant Status Review Tribunals.

“This is just one of many areas,” a government brief said, “where it is inappropriate to compare C.S.R.T. proceedings with background principles that stem from domestic criminal law.”

Um, okay. But how about background principles that stem from basic fairness and core American democratic values?Also, isn’t it odd that the government is simultaneously arguing that the CSRT proceedings provide a equal and fair alternative to habeas review, yet then turn around and argue that CSRTs “do-overs” are righteous because there’re only limited parallels between Gitmo and our civilian justice system?

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