Ted Olson on Guantanamo

 

This excerpt is from an op-ed in the wall street journal by Theodore B. Olson. The whole op-ed is worth reading (but it is behind a paywall). You can read the entire op-ed if you have a subscription (but why would you???).  

In retrospect, we made two mistakes in dealing with the detained individuals at Guantanamo. First, we created a new legal system out of whole cloth. I now understand that the commissions were doomed from the start. We used new rules of evidence and allowed evidence regardless of how it was obtained. We tried to pursue justice expeditiously in a new, untested legal system.

It didn’t work. The established legal system of the U.S. would have been capable of rendering a verdict in these difficult cases, but we didn’t trust America’s tried-and-true courts. In the 20 years since this ordeal began, no trial has even begun. There have been years of argument in pretrial hearings, which have produced no legal justice for the victims of 9/11. Instead of helping Americans learn more about who carried the attacks out and why, they have produced seemingly endless litigation largely concerned with the treatment of detainees by government agents and the government’s attempts to suppress certain information.

Our second mistake was pursuing the death penalty through the commissions. Death-penalty cases are the most hotly contested legal proceedings, given their irreversible nature. We doomed these newly created commissions to collapse under their own weight.

Attorney Olson was solicitor general at the time of the early legal battles relating to Guantanamo. He lost most of the bogus arguments he made on behalf of the government. It is nice to have attorney Olson recognize that habeas counsel were correct when arguing that the military commissions have no place in our legal jurisprudence. Too bad it took him 20 years to admit it. However, it did not require a great legal mind to come to that conclusion. It was a no-brainer. What attorney Olson does not mention in his op-ed is the reason why a new legal system needed to be created. The reason that the commissions were created "out of whole cloth" is that none of these men would have been convicted had they been tried in our federal courts. Our government (CIA, FBI, DOD, DOJ) screwed up any potential that these cases could have been tried in our federal system not only because of the torture of the men but because of the lack of any credible evidence that could have been utilized in federal proceedings. Not only was evidence compromised in the collection process but also most, if not all, of the evidence contained no indicia of reliability. This was a sham process to try to get around the fact that there was no reliable evidence to convict these men.

Slowly but surely... if we are lucky, the truth will come out.

h/o to Eric for sending.