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Looking for Fortitude from the Court

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March 29, 2006

I look at the case of Salim Ahmed Hamdan from two perspectives. As a retired army colonel who served 30 years as an intelligence officer, I understand combating terrorism is a critical strategic objective. However, as one who believes in constitutional government and civil liberties, I believe we can fight terrorism and preserve individual liberty and constitutional government.

The U. S. Supreme Court has heard the case; the court will determine whether and under what conditions and limitations the President may use military commissions to determine the fate of enemy combatants.

The decision to try Hamdan and other Guantanamo detainees before “military commissions” is one of many instances where the Administration has asserted the prerogatives of an “imperial presidency.” Since 9/11, the Administration has fashioned a legal opinions arguing that the President Bush’s Article II powers as commander-in-chief and the Congressional Authorization for Use of Military Force permit him to pursue the war on terror unfettered by law, international treaties, Supreme Court precedent, and the Constitution itself.

This view of executive power was the basis for creating military commissions that are little more than “kangaroo courts,” approving “aggressive interrogation techniques” that we would certainly call torture if used against Americans, claiming the right to jail immigrants indefinitely pending deportation, and authorizing the National Security Agency to eavesdrop on U. S. citizens without a warrant in violation of law (FISA) and the 4th Amendment. The administration believes if it invokes 9/11 and “the war on terror” anything goes.

Too many Americans have bought into the notion that criticism of the President in time of war is unpatriotic. They find it ironic that Mr. Hamdan has sought justice from the system that joined al-Qaeda to destroy. However, among those who oppose the President’s claim of unchecked authority, is a group of military lawyers – regular officers who have risked their careers to defend unpopular clients and preserve the rule of law.

Last summer in pre-Katrina New Orleans, I was honored to participate in a ceremony honoring five of these military lawyers with the ACLU’s 2005 Medal of Liberty. The five had been detailed, by sheer luck of the draw, to defend Guantanamo detainees before the Military Commissions President Bush created to try them for war crimes. One was Lieutenant Commander Charles Swift, Hamdan’s attorney who charged that the commissions had “an Alice in Wonderland” quality. The JAG lawyers could have taken their distasteful assignment and done just enough to slip by, but they didn’t. They had sworn to support and defend the Constitution of the United States against all enemies – foreign and domestic. They took their oath seriously.

Working at night and in civilian clothes, they prepared an amicus brief to the Supreme Court challenging “the attempt by the Executive to oust Article III courts of jurisdiction over the military prosecution of individuals whom the President deems ‘enemy combatants.'” They argued:

The President here asserts the power to create a legal black hole, where a simulacrum of Article III justice is dispensed but justice in fact depends on the mercy of the Executive. Under this monarchical regime, those who fall into the black hole may not contest the jurisdiction, competency, or even the constitutionality of the military tribunals… (Westlaw 2004 WL 96765)

Indeed, the detention facility was located at Guantanamo precisely to evade review by Article III courts.

In Congressional testimony, Commander Swift argued that, by running roughshod over the UCMJ:

…we have lost sight of our fundamental values to the point Mr. Hamdan faces judgment for allegedly violating the law of war in a tribunal that fails to live up to the standards of justice require by the same law.

Initially, Commander Swift was detailed to represent Hamdan for the limited purpose of negotiating a guilty plea to an unspecified offense; Hamdan’s access to counsel was “conditioned on his willingness to negotiate such a plea.” Swift fought for his client.

Interestingly, the JAG defense lawyers were not alone in attacking the commissions. Three military prosecutors assigned to the Office of Military Commissions also attacked the fairness of the military commissions. In internal emails they complained that their boss had admitted the commissions were rigged to improve the odds of conviction.

One prosecutor alleged being told that members of the tribunals would be hand picked to ensure convictions and that exculpatory evidence for the defense would only be found in CIA documents that were being withheld for security reasons. They were concerned about the admissibility of evidence obtained through torture. Major Robert Preston wrote: “I lie awake worrying about this every night… writing a motion saying that the process will be full and fair when you don’t really believe it will be is kind of hard — particularly when you want to call yourself an officer and a lawyer.” All three of the JAG prosecutors were transferred to other duties at their request. The Department of Defense investigated their allegations, but, unsurprisingly, determined they were unfounded, the result of a communications breakdown in the office.

I admire the intellectual honesty and moral courage of the military lawyers who risked their careers to defend the rule of law. They understand that Constitutional limits on arbitrary executive power do not become inoperative “when they become inconvenient or when expediency dictates.” We must hope the Supreme Court has the fortitude to play its appointed role and check the excesses of the Executive Branch.

Mike Pheneger, Colonel, US Army (R)
National Board and National Executive Committee, ACLU

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