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A View From the Hill---Part the Third

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 14, 2007

Alright, so there’s been loads of commentary out there on the authorization markup last week in Senate Armed Services. Before we get ahead of ourselves in terms of stand-alone bill, rider to Defense Authorization, or any other legislative fix, let’s identify our goals here. Remember, we don’t just want a simple restoration of habeas review for the Gitmo detainees. Our primary argument is that habeas review is essential because the entire Gitmo scheme itself is fundamentally flawed.Let’s put ourselves in the head of a Gitmo detainee. Here are the various fates we face:

We may plead guilty, like David Hicks, and strike a bargain with the commission;We may be designated an enemy combatant, but not be tried by military commission (meaning we still pose a danger and will be held until the end of the “war on terrorism”);We may be designated an enemy combatant, and brought up on charges in front of a military commission, which provides fewer procedural protections for the accused than standard military courts-martial.

Now, there are three instances where an “appeal” is warranted. The primary point is when you get tagged as an enemy combatant in the Combatant Status Review Tribunals (the CSRTs, again pronounced like the breath mint: C-Certs). This is key, because the government argues that the CSRT process (and appeal to the DC Circuit) is a viable and equivalent alternative for habeas review, which they hope will beat the constitutional argument that this is a “suspension” of the writ (among other things).Next, you need an “appeal” after your appearance in front of the Administrative Review Board. The ARBs (like the French for tree) are essentially brief, annual inquiries to determine if you’re like a habitual terrorist (whether you’re going to return to the battlefield). Finally, you need an appeal to an independent arbiter if you are accused of crimes warranting “trial” by military commission.And then, on top of those procedural checks, you need independent habeas review, not just after the CSRT, ARB or military commission has passed judgment, but as a separate ground for challenging the factual and legal basis of your detention.In any event, it’s important to keep our eyes on the ball. The current Gitmo system was a quick fix after two major rebukes by the Supreme Court. As it stands now, the whole thing—the commissions, the CSRTs, the ARB, the whole taco—is a hastily assembled, ramshackle ploy to deflect future court scrutiny. Any remedial legislation must take that into account.Narrow legislation isn’t going to fix any problems. Restoring habeas is an important first step in addressing the ad hoc and procedurally deficient essence of the Gitmo system. But you have other problems that would remain. I mean, you’ve got hearsay, secret evidence, no right to counsel at the crucial CSRT proceeding, admission of evidence obtained through torture (if it shows signs of “reliability,” which is the biggest Orwell-Kafka love child in the pack), etc., etc., etc.My point, I suppose, is that before we focus on the particulars of legislative strategy, which is important, no doubt, but obviously in deep flux, the conversation should focus laser-like on what we need to accomplish to achieve real American justice (meaning punishment for the guilty and freedom for the innocent) for all GWOT detainees.

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