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July 11, 2004 - Way down Guantánamo Bay way...

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Last week much of the discussion was on the Supreme Court rulings that seemed to require that those we are holding at Guantánamo Bay at least be allowed some sort of hearing to argue they were not “enemy combatants” at all.   See The Discussion: Second Thoughts and the related articles for all that. 

Yes, the Supreme Court ruled on June 28 that these Guantánamo detainees can challenge the legality of their detentions.  And the Pentagon actually is complying – setting up a system of hearings for all of them.  Each hearing will be presided over by three military officials.  And Reuters is reporting that in these hearings the detainees can't consult with or be represented by counsel. 



Rachel Meeropol, a human rights lawyer with the Center for Constitutional Rights, called the new procedures inadequate and illegal, and said they fall far short of satisfying the Supreme Court's ruling.  "The fact is they're coming up with these procedures on the fly," said Meeropol, whose group has filed cases in federal court seeking the release of several Guantánamo prisoners. 

Arriaga said that while the government should be doing everything possible in light of the court ruling to facilitate judicial review of the lawfulness of the detentions, it instead appears to be trying to narrow the scope of the review.  Arriaga noted that the new process remains entirely within the U.S. military, and that all sorts of evidence will be admissible, including from anonymous witnesses and statements that may have been coerced. 


But close enough?  This shows we’re trying to be fair, but not getting bogged own in a lot of silly detail? 

Well, it’s a start. 

Except the Los Angeles Times reports this - exceptions we seem to be taking to make sure things don’t get out of hand with all this legal stuff. 


Despite pledging yearly reviews for all prisoners held by the U.S. military at Guantánamo Bay, Cuba, Pentagon officials tentatively agreed during a high-level meeting last month to deny that process to some detainees and to keep their existence secret "for intelligence reasons," senior defense officials said Thursday. 

Under the proposal, some prisoners would in effect be kept off public records and away from the scrutiny of lawyers and judges. 

… It was unclear Thursday whether the Pentagon had followed through with the proposal, or how it would be affected by last month's Supreme Court ruling that granted detainees access to American courts.  It also was not clear how many detainees the proposal would apply to.  The Pentagon said there currently were 594 detainees at the camp…


The number of 594 is, of course, counting only those on the books at the moment.  The real number?  That is unclear at the moment. 

So.  Rumsfeld and the Pentagon give in.  Everyone gets a hearing – they just don’t get advice and counsel. 

Does this fall short of what the Supreme Court ruled?  One supposes that will take further adjudication – one of these detainees will have to sue over not being allowed to seek legal advice and then take it up through the courts and see if it rises to the top.  Gee, how will a detainee get help suing if the detainee cannot seek legal advice?  Whatever. 

Heck, what is the Supreme Court going to do about this “no lawyers here” rule – hold Rumsfeld in contempt and fine him, or send him to jail?  He has the Army. 

But he did give in.  Everyone gets a hearing – every detainee.  Everyone – depending on how you define the term.  There will always be some who just aren’t there.  And they cannot get hearings if they simply do not exist.  The Supreme Court cannot require an existential impossibility. 

Well, it’s a start. 


Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
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