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Putting the Military Commission Cart Before the Horse

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May 15, 2008

Last night the Pentagon announced that it wants to arraign the five detainees it just charged on Tuesday on June 5. Meanwhile, the Pentagon hasn’t even given the detainees full access to their prospective lawyers yet. So what’s the freakin’ rush?One guess: Could it be the much-publicized desire to get on with these illegitimate proceedings before the November elections? Morris Davis, the military commissions’ former chief prosecutor, thinks so:

Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.

The military commission system is hardly working. Slate published an excellent article on just why that is. In a nutshell, it’s those darn military lawyers who refuse to toe the Bush administration line and are actually fighting for fair trials:

Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals-some silent, some very public-have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.

… The truth is that the best thing the commissions have going for them right now are the lawyers and judges in uniform who have, albeit reluctantly, refused to play along…That’s not because they value the lives of terrorists over the lives of Americans or because they value legal formalism over the exigencies of war. It’s because they come out of a long military tradition of legal integrity and independence. And much as it must pain them, this precludes them from being yes men for the Bush administration at the expense of the rule of law.Slate concludes that the military commissions are as good as doomed:

If the same people who joined the military in the hopes of fighting terrorism have had enough of the government’s jury-rigged apparatus of Guantanamo justice, it’s probably time to stick a fork in the whole thing.

Meanwhile, stay tuned in the next month for the Supreme Court’s decision in Boumediene v. Bush, a case that will determine whether a detainee in U.S. custody-in Boumediene’s case, at Guantanamo-has the right to challenge his detention without charges or trial. This ruling will effect the 300-odd other detainees still held at Guantanamo without charge-not to mention the hundreds of other detainees in far-flung places in U.S. military custody.

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