Tainted Law

By Cernig

Today the NY Times reports that reservist Colonel Stephen E. Abraham may well have played a pivitol role in convincing the Supreme Court to review its decision on the question of enemy combatants' habeas corpus rights.

A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel. His posting, just as the Guantánamo hearings were accelerating in 2004, gave him a close-up view of the government’s detention policies.

It also turned him into one of the Bush administration’s most unlikely adversaries.

In June, Colonel Abraham became the first military insider to criticize publicly the Guantánamo hearings, which determine whether detainees should be held indefinitely as enemy combatants. Just days after detainees’ lawyers submitted an affidavit containing his criticisms, the United States Supreme Court reversed itself and agreed to hear an appeal arguing that the hearings are unjust and that detainees have a right to contest their detentions in federal court.

Some lawyers say Colonel Abraham’s account — of a hearing procedure that he described as deeply flawed and largely a tool for commanders to rubber-stamp decisions they had already made — may have played an important role in the justices’ highly unusual reversal. That decision once again brought the administration face to face with the vexing legal, political and diplomatic questions about the fate of Guantánamo and the roughly 360 men still held there.

The details, where detainees are declared "enemy combatants" on the flimsiest of evidence and tribunal panels are under intense pressure to make decisions the Bush administration wants, are a must read. I wrote about them last month too, when Abraham's whistle-blowing first hit the news. His revelations followed close on the heels of those from another whistle-blower, Lt. Col. V. Stuart Couch, a Marine Corps pilot and veteran prosecutor, who refused to prosecute one of the Gitmo detainees for which there is most evidence of wrongdoing because "He concluded that Mr. Slahi's incriminating statements - the core of the government's case - had been taken through torture, rendering them inadmissible under U.S. and international law."

The tribunal process is deeply flawed, the principals upon which detainment has been based are fundementaly opposed to the rule of law, evidence in all cases is tainted the very real presence of torture in an unknown number of individual cases. Yet the Bush administration and the military continue to spin the entire system as in keeping with international accords, even as the international legal community woidely agrees that isn't the case.

When the Supreme Court reviews the process, it should clearly signal that it intends the US to re-join the mainstream of civilized nations where the rule of law applies equally to everyone.