Sunday, March 27, 2005

This Is Why Trials are a Good Thing

Liberals get awfully nervous about military tribunals. For whatever reason, the idea of unrestrained authority, lack of meaningful checks, little due process, no civilian oversight, and President Bush as the ultimate determiner of justice doesn't sit well with us. Why on earth could that be?

Well, today's Washington Post offers a clue. Murnat Kurnaz, a German Muslim of
Turkish descent, was detained by the government for two years after 9/11 after a military tribunal determined there was "some evidence" that he was an al-Qaeda member. That would be nice, except that recently declassified evidence showed that the overwhelming weight of military opinion was that he had no ties to terrorism whatsoever. In all the files relating to Kurnaz's case, precisely one document, a brief unsigned memo by an unknown military official, argued he was a terrorist. As for the rest,
"in nearly 100 pages of documents, now declassified by the government, U.S. military investigators and German law enforcement authorities said they had no such evidence. The Command Intelligence Task Force, the investigative arm of the U.S. Southern Command, which oversees the Guantanamo Bay facility, repeatedly suggested that it may have been a mistake to take Kurnaz off a bus of Islamic missionaries traveling through Pakistan in October 2001.

"CITF has no definite link/evidence of detainee having an association with Al Qaida or making any specific threat against the U.S.," one document says. 'CITF is not aware of evidence that Kurnaz was or is a member of Al Qaeda.'

Another newly declassified document reports that the 'Germans confirmed this detainee has no connection to an al-Qaida cell in Germany.'"

Reaction by the Bush administration to what US District Court Judge Joyce Hens Green called "one of the most troubling military abuses of due process among the many cases of Guantanamo detainees that she has reviewed" was swift.
"Justice Department lawyers told [Kurnaz's lawyer] last week that the information may have been improperly declassified and should be treated in the foreseeable future as classified."

Amazing. The Bush administration detains someone even when the overwhelming body of evidence and analysis says he was wrongfully arrested. Then, when they're caught, their response is to try and hide their mistake by reclassifying the evidence that proves their malfeasance . Simply outrageous.

That, my conservative friends, is why military tribunals cannot be used to fight the war on terror. As applied, they are illegal under American law and international law. The disrespect for constitutional guarantees and the rule of law is simply astounding. Yet somehow, not surprising.


Blackraven said...

David, David, David. You read the Harvard finals packet: Rodriguez v. Wilkinson says the international law can and should be violated where domestic needs are served. Lousy arguement to fight tribunals that prosecute terrorists.

David Schraub said...

I can't seem to find a copy of the case you cite. I'm skeptical that it has the far-reaching implications you cite. It was essentially make both the Geneva Conventions and the Hague Conventions (both of which the US is party to) inoperable, since both primarily relate to actions in wartime. It also seems to contradict Missouri v. Holland (252 U.S. 416, concerning the enforcability of treaty provisions beyond the scope of domestic law). Finally, since these tribunals are also illegal under American law (see Ex Parte Milligan, 71 U.S. 2, In Re Guantanamo Detainee Cases, Hamdi v. Rumsfeld), inoperability of international law, even if true, is irrelevant.