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Stained record

I’m really hoping this one is wrong. Certainly the term “death camp” is overblown rhetoric. The reality is bad enough. We can’t be executing prisoners without very open due process, and Guantanamo Bay is a closed system. No appeals, no juries. No spectators.

This is not an accusation. I do not say that the proceedings would be unfair; I can’t say that, because I don’t know who the men on the tribunals would be. What I’m saying is this: our system is an open one precisely because our Founding Fathers knew that it was necessary; it is an open system because we are expected not to trust the government’s unsupported word.

Proof of fairness is a burden that lies on the shoulders of the court. They must not refuse to take up that burden.


  1. I don’t think the article is wrong.

    If we accept what this Reuters story says, then everything is backed up except the claims that they will be executed in Guantanamo Bay and not in Indiana, and that they will not have a right of appeal to U.S. civilian courts (it appears that they will have an appeal within the military system, contrary to the article, but I don’t think that changes anything – a bully’s big brother isn’t the same as the Supreme Court). But the reason they don’t have access to the U.S. civilian courts right now is that they are not in the jurisdiction of any U.S. court. If they ship them to Indiana, they would gain access to civilian courts. If the U.S. wants to convict and execute detainees without due process, it has to keep them in Cuba.

  2. A bully’s big brother? Good grief.

    The US will never — NEVER — execute Gitmo prisoners who haven’t been convicted of capital crimes in federal courts. This is just pure fantasy of the America-haters, where the evil US military is capable of just about atrocity imaginable.

  3. If your best response to my comments is to belittle me, I’d prefer you kept that response to yourself. I think “a bully’s big brother” is a pretty fair characterization of one branch of government offering to police itself without review by other branches. If you don’t think that characterization is fair, I think it would be only civil to explain why.

    Q: Just a procedural question. Is there a higher court of appeals, or is this it?

    Lietzau: There’s a review panel that’s detailed in Military Commission Order No. 1 that will review every case after it goes through the appointing authorities, forward it to the review panel, then to the secretary of Defense, then to the president. So there’s a fairly extensive review process that takes place for every case.

    From here.

    So. Is Marine Lieutenant Colonel William Lietzau lying or merely being disingenuous when he does not mention the U.S. federal courts in the appeal process? Or is the U.S. Circuit Court of Appeals for the District of Columbia wrong when it says “No court in this country has jurisdiction to [hear constitutional claims of] the Guantanamo detainees, even if they have not been adjudicated enemies of the United States”?

    My point is that, legally, the military is not under federal jurisdiction if they execute the detainees at Guantanamo. Your point appears to be that this is a political impossibility. These are distinct points. My question to you is, if the military is not willing to do this, why is it pretending it is?

  4. Haws Haws

    Kodi: However “belittling” you found my response to your comparison of the US military to a bully – now with your apparent insistence that it’s a fair characterization – it was, if anything, an understatement of my disbelief at the silly parallel. I’ll try to explain why without digressing into tangential arguments such as the classification of Gitmo detainees as unlawful combatants, though I do think that’s the proper status.

    Your argument ultimately seems to hinge on constitutional guarantees being extended to non-US citizens who’ve never so much as stepped foot in this country. I don’t believe that’s intended by the Constitution and wonder if this point doesn’t lie at the root of our disagreement. If it does there may be no bridging that gap, but I’ll plunge ahead anyway for now.

    I think the Gitmo detainees deserve a fair trial and should of course be treated humanely, but that doesn’t require they be given access to our federal appellate courts. The DC circuit is probably right about the jurisdiction issue and while the review process is limited to that proscribed by the military judicial system it doesn’t make it a “bully,” or at least no more so than any other judicial system. Further, I’m sure you’re aware of precedents holding military tribunals, even executions in times of war, not to be unconstitutional, which would seem to undermine the position that they lack legitimacy.

    But you’re absolutely right about my point being that military executions at Gitmo are a political, not a legal impossibility.* So, why is it then that I don’t believe the US will ever execute a detainee not convicted in federal court of a capital offense? It’s not because I think military tribunals are unconstitutional or inherently unfair – I don’t, and the transcript of the DoD proceeding you cited makes many strong points along those lines – but rather because, in the unique context of the war on terrorism, as opposed to the more traditional constructs of war, it would be seen (rightly) as being nearly as savage as many of the regimes with which we are at odds.

    You ask me why our military, if it’s not perfectly willing to execute Gitmo detainees, is pretending that it might do so. Well, I’m not so sure how much it has actually pretended as such, but it may be that they’re using the threat of that possibility as a means to elicit cooperation. If that’s the case, and no matter how common the tactic is as a prosecutorial tool, it will backfire in the court of international opinion – though one wonders how much worse that can get for us.

    I’ll say now, if military prosecutions seeking executions are in fact on the agenda at Guantanamo, I’ll be just as loud as you and Bryant in voicing my opposition. I think it would be wrong and unnecessary (and won’t ever happen), but argue nonetheless that the military judicial system is not an unfair or inappropriate venue to try foreign nationals for crimes committed against US service men and women engaged in foreign wars.

    *Actually, I oppose capital punishment for a variety of reasons, none of which have anything to do with military justice. In fact, the only instances where I tend to support it involve certain acts of extreme treason committed by DoD personnel, given the grave consequences their crimes may pose to hundreds of millions of citizens.


    Still just “plans” – no indication if they’re “invade Canada” type plans, or “we’re calling these ‘just plans’ so we don’t have to answer embarassing questions” type plans. At any rate – it’s becoming vanishingly difficult to say “the military is not claiming it might execute prisoners at Guantanamo.”

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