President Obama ratified the following charade to make "enemy combatant" determinations at Bagram, which can be the equivalent of life sentences. The initial judgment is made "in the field." It is reviewed within 75 days, and then at six-month intervals. The reviewing body is the Unlawful Enemy Combatant Review Board, a panel of three commissioned officers. It examines "all relevant information reasonably available." The detainee is denied access to a personal representative or lawyer. He is denied access to the government's evidence. He is denied an opportunity to respond in person. He is limited to submitting a written statement without knowledge of either his accusers or the allegations that must be rebutted. After its sham hearing, the UECRB makes a recommendation by majority vote to the commanding general as to whether the detainee is an "enemy combatant."
The Bagram procedures are descendents of the Spanish Inquisition. The executive branch decrees that "enemy combatant" status justifies detention, enforces the decree through executive detentions, and decides whether its enforcement decisions are correct. That combination was what the Founding Fathers decried as the "very definition of tyranny" in The Federalist 47. In addition, the incriminating evidence and accusers are secret. And the judges are military persons the detainee is accused of hoping to kill, which probably compromises their putative impartiality.
President Obama's claim of wartime necessity as justifying constitutional shortcuts is unpersuasive. The United States granted accused war criminals captured in the China Theater a particularized statement of charges and a rigorous adversarial process, noted by the United States Supreme Court in the 1950 case Eisentrager v. Johnson. As regards state secrets, the government can always accept a default judgment, meaning an acceptance of liability for alleged injuries, if it wishes to preserve vital intelligence sources and methods. The government confronts the same choice in criminal cases—i.e., either to disclose classified information necessary for a fair trial or to drop the prosecution.
President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise. It encourages torture, kidnappings, inhumane treatment, and similar abuses, all carried out in the name of fighting international terrorism. That encouragement is compounded by the president's adamant opposition to criminal prosecution of former or current government officials for open and notorious abuses—for example, water-boarding or illegal surveillance. His stances on habeas corpus and state secrets flout twin verities of Justice Louis D. Brandeis: Sunshine is the best disinfectant; and, when the government becomes a lawbreaker, it invites every man to become a law unto himself.
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