Prisoners' dilemma.

The law, lawyers, and the court.
Aug. 3 2004 4:47 PM

Prisoners' Dilemma

How the administration is obstructing the Supreme Court's terror decisions.

No justice
No justice

In the first two years after Sept. 11, whenever its terrorism or detention policies were challenged in the courts, the Bush administration waged a scorched-earth legal campaign in its own defense. Justice Department lawyers routinely deployed an arsenal of procedural motions and legal delay tactics to keep the federal courts from ever hearing a terrorism case on the merits. When the Supreme Court stepped in last June with the last word on the legality of such wartime practices, observers (including me) had a right to hope that the administration would cease its foot-dragging and finally conform its policies to the demands of the justices and the rule of law.

The Bush administration dashed that hope last month with a series of actions concerning detainees from the war on terrorism and the war in Iraq. In a court filing on Friday, the administration announced its intention to deny Guantanamo Bay detainees full access to counsel to prepare their habeas corpus petitions and signaled that it would resume its relentless legal tactics to fight the detainees in the courts on a host of procedural issues. The administration also started to move forward with two sets of legal proceedings—Combatant Status Review Tribunals and military commissions—to adjudicate the status of Gitmo detainees. These hearings purport to benefit the detainees, but may, in fact, end up hurting more than helping them. And in a separate but related development, the Army finally released its much-awaited investigation of the Abu Ghraib abuses. Not surprisingly, it laid the blame on a few bad apples, rather than any systemic problems in the military—and exempted the top ranks of the Army and Pentagon from any legal or moral culpability.

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Although these events concern different legal issue and different sets of detainees, they share a common denominator: a legal strategy to keep the rule of law out of the war on terrorism by whatever procedural, legal, or administrative means are available.

In its Rasul decision, the Supreme Court recognized the Gitmo detainees' right to file a writ of habeas corpus in federal court. But the high court never said this had to be a meaningful right to habeas corpus, nor did it define the practical parameters of such a right. Issues like the right to counsel and the proper location for habeas corpus suits were left to the imagination. Not surprisingly, the administration has seized on this ambiguity to resume its post-9/11 legal offensive in the courts. The essence of the legal strategy is to litigate every single procedural and technical issue to the full extent of the law, using the vast resources of the Justice Department to delay judicial action as long as possible. The implicit purpose is clear: to delay justice so that detainees can be held and squeezed for intelligence.

The Justice Department's lawyers make no attempt to hide this legal strategy. In footnote 14 of their filing before the federal district court in Washington, D.C., in Al-Odah v. United States, the administration's lawyers explicitly reserve the right to litigate niggling procedural issues, such as whether this is the proper defendant in a habeas corpus action, and the proper location for such suits. There is some irony here, because those are the two grounds the Supreme Court used to kick back the lawsuit by Jose Padilla, a U.S. citizen held as an enemy combatant in South Carolina. Even though the Justice Department lost in the other two terrorism cases before the Supreme Court, it now hopes to use the same procedural tactics it used to defeat Padilla's claim to avoid petitions for habeas corpus from detainees at Guantanamo. The strategy appears the same: deny every right, and fight every claim, for as long as possible, so that interrogations and intelligence collection at Gitmo can continue unimpeded by legal process.

Also this week, the Pentagon launched a series of hearings called "Combatant Status Review Tribunals" and signaled that it would soon begin the quasi-criminal trials known as "military commissions." The review tribunals are designed to sift out detainees who aren't really enemy combatants at all, who deserve to be sent home or released altogether. On their face, these tribunals seem like a good thing, because they could theoretically free some prisoners at Gitmo. But in practice, these hearings will help the government a lot more than the detainee, by helping it build an evidentiary record for later use against the detainees. Most of the detainees were captured on Afghan and Iraqi battlefields, either by U.S. troops in combat or by U.S. proxies such as the Northern Alliance. It's doubtful that much exists in the way of witness statements or physical evidence to corroborate their combatant status. The Pentagon does have extensive records from its Gitmo interrogations, but federal courts won't allow the introduction of that evidence if it was obtained involuntarily, without a Miranda warning, or as the result of torture. So if the Pentagon wants to win any habeas corpus proceedings in federal court, it needs to put together evidence against the detainees. And voilà! The Combatant Status Review Tribunals are born.

If ever there was a "prisoner's dilemma" for social scientists to study, this is it: go before the panel, and you help the government build its case against you; or wait for your chance in federal court, and you could never escape from Gitmo. Given the low standards of evidence and proof allowed for these hearings, it's likely that even an innocent detainee will choose to keep his mouth shut and take his chances in federal court.

As if on cue from the Justice Department and Pentagon lawyers, the Army decided to do some foot-dragging of its own with respect to detainee abuses in Iraq and Afghanistan. The Army's official Inspector General report on Abu Ghraib—in stark contrast to the Taguba report, which found systemic problems with detainee treatment in Iraq, or the reporting of Seymour Hersh in TheNew Yorker, which traced the blame chain from Iraq all the way to Washington—blames a few individuals and leaders for the abuses at Abu Ghraib. Never mind that 94 separate incidents of abuse were uncovered by the report—with most happening at the time and place of capture, not at some central prison locations where a few bad apples happened to work. The Army was "unable to identify system failures that resulted in incidents of abuse."

It defies both reason and common sense to cite 94 separate incidents of detainee mistreatment, yet determine there were no systemic issues (like training, insufficient troop strength, and unclear legal rules) to fault. Are there really that many bad apples in today's vaunted, all-volunteer, highly educated military? Doubtful. What's more likely is that the U.S. military has been corrupted by a morally and politically ambiguous mission, poorly trained and resourced for occupation duty, forced to work with impractical rules of engagement, and left with too few troops to do the job in Iraq. Cumulatively, all these external factors enabled a few sadistic soldiers (led by derelict officers) to do their dirty deeds at Abu Ghraib. But the Army refuses to acknowledge the role these systemic factors played, choosing instead to heap all the blame on a few junior enlisted soldiers. Those soldiers now face prison time, unlike their officers, who are being let off with administrative reprimands.

On top of this official Abu Ghraib whitewash, the Army appears intent on making other abuses go away through the prosecution of a few low-ranking soldiers. In Colorado last week, the Army announced that it would extend full immunity to three mid-level officers involved in the prosecution of three subordinates in the death of an Iraqi who was allegedly pushed off a bridge to his death. As at Abu Ghraib, the senior officers were let off with career-ending administrative punishment, instead of criminal prosecution. At a time when the world thinks quite poorly of America for its treatment of detainees and adherence to the rule of law, the U.S. Army is sending exactly the wrong message with this immunity decision and the Abu Ghraib report. Instead of promoting responsibility and the rule of law, the Army appears to care more for the Washingtonian principles of damage control and spin.

If there is a historical analogy to be drawn here, it is with the legal tactics of segregationists in the years following the Supreme Court's famous 1954 Brown v. Board of Education decision. In its second Brown decision, the U.S. Supreme Court ordered the segregated school districts to integrate themselves "with all deliberate speed." Segregationists took that message to heart, literally taking decades to integrate their schools (a taskwhich some say has still not been accomplished). Segregationists used every legal tactic imaginable to delay the progress of integration—from filibusters in the Senate on civil rights legislation, to crazy school districting schemes, to literally standing in the schoolhouse door of Central High School in Little Rock, Ark. Eventually, the legal principle of equality won, and segregation faded into the history books, but it took a protracted fight to make the Supreme Court's Brown decision a reality.

The issue here is not so much the detainees' rights per se (although the detainees might say otherwise) as the need to restore the U.S. commitment to the rule of law in the eyes of the world. To date, the United States has not been able to enlist many of its allies to help shoulder the burden of Iraq, and Sen. John Kerry is unlikely to do much better given the current state of animus toward the U.S. in the world. Treating the wartime detainees fairly by giving them a fair hearing before a neutral magistrate (as ordered by the Supreme Court) would go a long way toward rebuilding bridges with our allies abroad. American moral leadership on these issues will also help win hearts and minds in Iraq, where the parallels between the Abu Ghraib abuses by U.S. soldiers and Saddam Hussein's henchmen are all too easy to draw. But none of that will happen if the United States continues to drag its feet, kicking and screaming at every step of the way. Indeed, if the fight to implement Rasul takes as long as the fight for equality after Brown, then many of the detainees at Gitmo could die in captivity before they see their rights vindicated.

Phillip Carter is a former Army officer who writes on legal and military affairs from Los Angeles.

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