What's more American than a do-over?

From The Oregonian

GUANTANAMO IN COURT

Wednesday, May 16, 2007

David Sarasohn

For five years, people have been complaining that the prison at Guantanamo Bay follows no real legal procedures. But evidence in a hearing in Washington, D.C., this week suggests that Guantanamo has plenty of legal procedures.

In fact, according to The New York Times, if a military tribunal hearing to decide whether a prisoner is an enemy combatant turns out in a way the government doesn't like, the government holds another one. Lawyers complain that the hearings have no relation to American legal principles, but what's more American than a do-over?

The U.S. Court of Appeals for the D.C. Circuit, just below the Supreme Court, is hearing a series of challenges from several groups of prisoners to the operation of Guantanamo's military tribunals. It's the Bush administration's position, of course, that the courts really don't have to bother.

According to the administration's reading of a law passed by Congress in 2005, courts have power only to decide whether the tribunals are following their own rules. Lately, the administration has suggested some interesting new rules, such as limiting lawyers' visits and checking out previously confidential communications between prisoners and their attorneys.

Tuesday, lawyers for prisoners asked for a broader review of the procedures, pointing out that was, well, what judges were supposed to do. Some judicial responses suggested sympathy for that idea.

Concerned about limited information from the government, Judge Douglas Ginsburg noted, "I don't see how there can be any meaningful review if we don't know what we don't know."

When a Justice Department lawyer suggested that the tribunals resembled procedures in the Army Field Manual, Judge Judith Rogers warned him, "You'd better not invoke that," pointing out that lots of the manual's procedures were missing in the tribunals.

The administration has had some embarrassing judicial defeats on the subject of Guantanamo, and it seems that even after the last Congress passed new laws to try to write courts out of the issue, it might be facing some more. "The D.C. Circuit is skeptical of the government's restrictions on lawyers, of how limited the scope of courts is in the government's view," says Jonathan Hafetz, litigation director of the Liberty & National Security Project at NYU Law School's Brennan Center for Justice. "It shows the need for court review. You can't just leave this to the executive branch."

On Guantanamo, and military tribunals, the government has managed to take a procedure with minimal legal credibility and no international acceptance and make it look steadily worse. In addition to trying to write courts out of the oversight process, the last Congress passed the Military Commissions Act, declaring that Guantanamo prisoners had no habeas corpus right to ask a court why they were being held. Then, the administration decided that lawyers had too much of a role in the process. And of course there was the do-over rule. One of the prisoners represented in a D.C. hearing went through the process once and was found not to be an enemy combatant, but a second time around straightened that out.

"The tribunals in general are a kangaroo court," says Tom Johnson, a lawyer at the Perkins Coie firm in Portland, who represented and secured the freedom of Ihlkham Battayav of Kazakhstan, a cook's assistant in a Taliban camp who was held for four years. "My client had no idea what was going on when he walked into the room."

A prisoner does not have an attorney present at the tribunal. There is an officer assigned to him, says Johnson, but "that person is told not to advocate on behalf of the detainee, but just to make the detainee know what's happening" -- which would not include showing the detainee evidence against him that's been declared classified.

Once again, the issues about Guantanamo, and military tribunals, are on a long march, first through the D.C. Circuit Court of Appeals and then to the Supreme Court. But we don't need a judicial decision to recognize that Guantanamo is a situation that our principles won't support and our friends will not defend.
We need to reconsider what we're doing there.

In fact, we need a do-over.