War on Terror

Preserving Justice By Saying No

How principled men and women in the military justice system resisted encroachments on civil liberties.


The Terror Courts: Rough Justice at Guantanamo Bay, by Jess Bravin, Yale University Press, 414 pages, $30.

I was considerably more pessimistic about the War on Terror's impact on American liberty before I read Jess Bravin's The Terror Courts: Rough Justice at Guantanamo Bay. It's not that the author is an optimist—far from it. Bravin, The Wall Street Journal's Supreme Court reporter, describes with dismay how George W. Bush's administration attempted to create a shadow justice system for dealing with those the executive branch views as perpetrators and facilitators of terror. Wielding no partisan axe, Bravin also laments Barack Obama's failures to renounce many of the executive powers claimed, and often exercised, by Bush.

But Bravin also describes a civil war within the national security establishment. As Bush's most hardened hawks charged ahead in rounding up suspected terrorists, others within the government fought, both overtly and covertly, to protect constitutional procedures.

It is no secret that sectors of civil society—the civil liberties organizations, the organized bar, much of the news media—battled Bush and his henchmen (and now Obama and his henchmen) to prevent abuses of civil liberties by military tribunals. Bravin showed that they had an important set of allies in that fight. To the extent that liberty and due process have survived, they endure thanks in large measure to men and women on the inside, who rebelled against, and in subtle ways worked to undermine, what they deemed threats to the nation's fundamental institutions.

Those military commissions, established by presidential order, were assigned to try terror suspects on the basis of evidence and procedures that would never hold up in either a court martial or a federal court. The most frequent and dramatic problems arose when the president's men determined to use the fruits of coercive interrogation techniques—torture, in the eyes of many within the military justice system—as evidence in a tribunal. Yet the commissions never did become kangaroo courts. You can give part of the credit for that to the unexpectedly assertive federal courts, and part to an occasionally assertive Congress. But Bravin shows, in fascinating and often dramatic detail, how members of the security agencies and the military pushed back against the changes, effectively thwarting the president's men. Officers on the ground turned out to have minds and principles of their own, and those principles frequently conformed more precisely to constitutional values than those of their superiors.

Marine Lt. Col. Stuart Couch, for example, is an ROTC lawyer who repeatedly refused to prosecute terrorist suspects whom he concluded had been tortured by CIA agents. And Navy Lt. Commander Charles Swift, the lawyer appointed by the Pentagon to try to wrest a guilty plea from captive Salim Hamdan, ignored his marching orders and instead advised his client to fight rather than engage in a plea bargain. The ultimate result was the Supreme Court opinion in Hamdan v. Rumsfeld (2006), which imposed legal constraints on the Bush administration's program for trying alleged terrorists by military commission.

Thanks to Lt. Commander Swift and the Supreme Court, Hamdan, who had been Osama bin Laden's chauffeur, received a fair trial. The government charged him with terrorist conspiracy and with providing material support to terrorists, essentially attempting to hold Hamdan responsible for the actions of his employer. Because of the absence of evidence that Hamdan did much of anything other than drive the boss around, the prosecution tried to fill in the gaps by calling an expert witness, Evan Kohlmann. For the munificent sum of $25,000, Kohlmann lectured the military jury on the horrors of the Al Qaeda terror network. Both civilian and military prosecutors frequently call on Kohlmann, whose credentials are scant, to frighten jurors with his vivid narratives. (Disclosure: Kohlmann brought his dog-and-pony show to a trial in federal district court in which I served on the defense team.)

The military jury proved itself immune to these scare tactics and to the government's overwrought theories of culpability. It acquitted Hamdan on the conspiracy count. It convicted him on the charge of material assistance, but instead of the life sentence the prosecution hoped for it gave him five months and eight days after crediting timed-served awaiting trial. (This past October, after the cut-off date of Bravin's narrative, the U.S. Court of Appeals in Washington overturned even that conviction, holding that the international law of war did not deem "material support for terrorism" to be a war crime.)

Bravin gives a bit too much credit to the Supreme Court for standing up to the Bush administration's assault on the writ of habeas corpus. While the court dutifully held that Guantanamo prisoners were entitled to challenge their incarceration via the writ, its prescription for the content of habeas hearings was rather watered down. But this is a minor quibble in the face of a remarkable job by one of the news media's most persistent reporters on matters of law and national security. Bravin penetrated a system designed for railroading prisoners in near-total secrecy, and he demonstrated the persistence of many ordinary—and some extraordinary—Americans' visceral devotion to such quaint notions as the presumption of innocence and the rule of law.

NEXT: Nick Gillespie in WSJ: What I Learned in The Boys Scouts of America and Why They Should Change Their Policy Toward Gays.

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  1. Of course the military members’ values tend to be closer to constitutional values…we swore an oath to the Constitution when we signed up and were only required to obey the *lawful* orders of the President. Granted, it’s an extremely gray area, which orders could be deemed lawful or not, but military members aren’t different than anyone else…they have moral codes that they follow and most I knew while I was in took their oath to the Constitution very seriously.

    While circumstances may be different in the military from the civilian world, people don’t stop caring about right and wrong just because they put on a uniform.

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    2. too bad the president and congress don’t remember that they also took an oath.

  2. Happy birthday to two people known to the public for being emotionless androids: Brent Spiner (64) and Ayn Rand (108)!

    1. Hey…Data finally got his emotion chip in Generations.

      1. And Lore always had it. I think Serious needs to be ridiculed for being a dumbass.

        1. What about B4?

          1. B-4 is the Rosemary Kennedy of Data’s family. We don’t talk about him.

            1. I know. I just wanted to make you think of Nemesis for a minute.

              1. I always knew you were evil, X. That’s why I like you.

        2. And Lore always had it. I think Serious needs to be ridiculed for being a dumbass.

          That was uncalled for, but what can I expect from a simpering, devil-eared freak who’s father was a computer and mother an encyclopedia?

          1. You belong in the circus, Serious, not on this blog. Right next to the dog-faced boy!

            1. At least I’m not disloyal to the core and rotten like the rest of your subhuman race. And you’ve got the GALL to make love to that girl!

              1. What makes you think you’re a man? You’re an overgrown jackrabbit. An elf with a hyperactive thyroid.

                1. Does she know what she’s getting? A carcass full of memory banks who should be squatting on a mushroom instead of passing himself as a man?

                2. A horny overgrown jackrabbit- a jackalope.

    2. Did Ayn Rand see her shadow today?

      1. Yes, but she then explained to the crowd that Groundhog Day is an irrational superstition like her ghost being able to give a speech. She then promptly disappeared into a poof of logic.

        1. Thanks for doing that. I wasn’t able to develop the idea worth a damn.

    3. It’s funny though, because Brent Spiner was also the unlucky hillbilly on Night Court

      Like every week he and his wife would get arrested for something stupid or another.

    1. ….Keeps the President Away?

      1. Well, if he got too close he might become collateral damage when the drone swoops in.

  3. Off topic, but heartening to see.

    There are a lot of pissed off New York staters who aren’t going to comply with Cuomo’s new law.


    I don’t give it long before some NY cops have a bad run-in with an old man who just doesn’t give a fuck anymore and has nothing to lose.

  4. I want to know how badly all of the protagonists got rail roaded after the fact. I hope they didn’t but the last few POTUSs seemed to be increasingly vindictive.

  5. Did anyone catch this news item about the current military tribunals:


    It is Kafkaesque in the extreme, with the judge in the case becoming infuriated because she didn’t even know that some anonymous entity (called the Original Classification Authority or some such Orwellian claptrap) had the power to cut the audio feed at will. According the the rules supposed to cover these trials, only the judge and a “security officer” (whatever that role entails) would have the authority to cut the 40-second-delayed audio feed of the proceedings if classified information could potentially be revealed. But now the presence of hitherto unknown entities literally behind the curtain manipulating the proceedings renders the entire process farcical.

  6. “…describes with dismay how George W. Bush’s administration attempted to create a shadow justice system for dealing with those the executive branch views as perpetrators and facilitators of terror. Wielding no partisan axe, Bravin also laments Barack Obama’s failures to renounce many of the executive powers claimed, and often exercised, by Bush.”

    I dont see the problem here. This has been done before many times and it never gets out of hand. It never gets used against those it was not intended for. What could go wrong?

    “…Americans’ visceral devotion to such quaint notions as the presumption of innocence and the rule of law.”. And the Bill of Rights.

    We heap much derision on the ‘average’ american in these threads for their stupidity. Most of it is deserved, but perhaps we should do it with less gusto. I highly recommend watching wingnutz video link.
    When I think of the sphincters contracting in the Top Men in that video I cant help but smile.

    1. imo, one of the most offensive things about H&R (and it totally reminds me of progressive blogs where posters do the exact same thing) is the derision heaped on average americans, or “merkuns” or other such with the presumption always following that the current writer and of course the libertarian in general, is so much smarter, better informed and not fooled like all those “dumb merkuns”.

      maybe it’s because daily i come into contact with people from all walks of life, from trailer parks, to million dollar estates, that i think the american people on the whole are awesome and not at all stupid. and granted, i tend to often have to deal with people at their worst (criminal excess), although sometimes at their best (heroic and selfless).

      i think a big part of it is the “average american” frankly is just not very political. they don’t get worked up about military tribunals and a lot of other stuff that offends us greatly. they are more concerned with putting food on the table in particular, and local issues in general. i attend city meetings and the complaints i hear about are speeders, the “drug house” at the corner with all the nefarious late night traffic, graffiti, gang influence on kids, etc. THAT stuff gets people involved.

      we have a surprising # of “citizen academy” applicants every time a new academy comes up, clearly, these “average americans” are interested in safety, crime, and issues in their community.

      1. I agree it is offensive. I also understand it, despite my not necessarily agreeing with it. Or disagreeing with it.

        How many viewings of Kelly Thomas videos, re-elections of BHOs and Bloomturds does it take to make one jaded?

      2. Yeah I’ll give you that; speeders are one of my (many) pet peeves. Two years ago I had to move to Oklahoma for reasons I won’t go into, and man, I swear, these people watch too much NASCAR or something. It scares the shit out of me to drive around here, and when I go up to the city, OKC, I can literally feel my sphincter contract

        1. In fact, if you remember me at all, it would be for my anti-police comments. But in the area of traffic-control, I believe that we don’t have enough cops on the job. And that actually is a consistent position: stop wasting resources prosecuting the war on drugs, and use those resources to police the streets. Traffic accidents are the biggest threat to the average American, and most of them are avoidable. I get road rage, hell yeah, I get pissed that some dumb ass driving like a moron is threatening my life. Or speeding through a residential neighborhood where kids are playing.

          1. So, to sum it all up: people disrespect the police because they feel that the police are out there looking for a reason to bust folks, that even though you are minding your own business, somehow you may fall afoul of the law. Meanwhile, on a daily basis, they observe real, actual threats to the community that are ignored. And of course, they are the ones paying to be harassed, while they watch true threats being ignored.

            1. People in flat states drive fast because it’s easy to. Hell, here in pittsburgh, on the highways in and out of the city people go 75-85 mph, and that seems fine.

              Now in WA (around seattle-everrett) everybody goes 3 mph above the speed limit, in all lanes, and the people that want to go faster dart in an out of the lanes. Which is wayyy more dangerous than everybody going 80mph and having a good reaction distance.

              And speaking of reaction distance there, people tend to give about 3 inches of space between cars (then go REALLLY FUCKING SLOWWWWW). Which, I think, is way more dangerous than staying back 30-100 feet and going a bit faster.

              1. You could also live in Atlanta, where people go 75-90 regularly, and that still isn’t fast enough for certain demographics, who weave in and out of traffic in their leased luxury or sport cars.

                I think there’s an accident every other day in this stupid city.

      3. If they don’t want to devote attention to political issues they shouldn’t be voting. Let me know when your “average American” volunteers to give up the franchise so they can concentrate on putting food on the table. Let me know when it becomes not verboten to support a political knowledge test as a precondition for voting.

        The average American votes for the Drug War, stands idly by as their reps borrow and spend ourselves into oblivion and kill innocent people around the globe for no reason whatsoever. And don’t give me shit about CO and WA legalizing MJ; let me know when they legalize a drug that’s not less harmful than alcohol. Back in the Roman Empire or the medieval monarchies, the common man could legitimately be ignorant of political matters because he or she had no say anyway. In a democracy they lose that excuse. Government of by and for the people means the people bear the responsibility for what govt does.

        1. Let me know when it becomes not verboten to support a political knowledge test as a precondition for voting.

          Yeah, that couldn’t be used to fuck people over.

          I’ve entertained the idea of limiting franchise, and still see it as possibly having merit, but poll tests would be a fucking nightmare.

      4. Well, Dumbphy, we libertarians are superior to Flyover Mur’cans, and that’s just a fact. If you don’t like it, go fuck your dad and shoot his dog.

        Hey, has anyone tried Flat Tyre Double Hop Bock Top?

  7. In 1865 Robert Cobb Kennedy of Louisiana, whose main dispute with the United States was that it insisted that he remain an American citizen despite his states insistent that it did not wish it’s citizens to continue that status, was tried by military tribunal and hung by the neck until dead for attempting to start fires in New York City as part of the war effort. As a Confederate officer he insisted on a military execution by firing squad but was denied that dignity. I can’t for the life of imagine any legitimate reason why the United States government should accord any more consideration to those who are not American citizens caught in plots to carry out violence against civilians or our property than it has those who it did consider US citizens. We haven’t hung one of these terrorists yet and it is about time we get on with it. A tough minded president would have worn out several hundred feet of rope by now and Gitmo would be returned to it’s previous function of irritating Castro due to lack of need.

    1. Ummmmmm FUCK OFF SLAVER.

      Is that the appropriate response or haz I been trolled?

    2. KBronson. Is that a different spelling for “Ignoramus who has never read a history book” ?

      I doubt anyone here thinks that those who actively plot against our country, or plot to harm innocents, should not have the hammer let down on them.

      What we are speaking out against is those who wish to discard the rule of law and follow their base instincts. If that is what you are advocating then you are no less an enemy of our country than those who flew planes into the WTC.

      GWB and BHO taking turns wiping their asses with our constitution is more destructive to our country than anything al queda can do.

    3. The constitution does not grant anyone any rights, it protects rights by forbidding the government, including the president, from taking certain actions.

      Just because a government does something it is forbidden to do doesn’t make it legal, much like the actual act of murder doesn’t abolish a law prohibiting murder or make murder okay.

    4. So your response to terrorists’ attempt to destroy America is, in the face of their inability to do so, to do the job for them by shitting all over our Constitution and the rule of law? Fuck you.

  8. Sounds like a very solid plan to me man, I like it.


  9. Most Americans don’t seem to care enough about the Bill of Rights to insist that they be treated according to its provisions, so why do you expect any of them to get riled up over the non-application of those rights to foreign born terrorists?


    1. “Most Americans don’t seem to care enough about the Bill of Rights to insist that they be treated according to its provisions” – hogwash! The American people are many things, but pacifist is not one of them. They are more like 5 year old children, screaming “it’s my right” or “that’s not fair”. I bet most Americans are quite jealous of their rights to free speech, right to a lawyer, etc.
      I do agree that they are not quite so concerned about safe guarding those rights for others

      1. Remember I said “the Bill of Rights”. If Americans really care about these rights, how is it that the Fourth, Fifth, and Tenth Amendments got to be as completely gutted as they are today, and why are the howls against the Second so loud, frequent and approved by our Better Classes?

  10. Obama shoots skeet like he throws a baseball… low and with terrible technique. Unless the clay pigeons are rolling on the ground in that photo, he missed.

    Now that his handlers rushed out and got that photo, the next media question should be for him to describe the action of shotgun he’s using in the photo, and name the make and model, and who taught him to shoot with his strong elbow down and only half the buttpad touching his shoulder (ouch!).

    1. News of President Obama’s apparently long-secret fondness for skeet shooting came as a surprise to those who say they have witnessed the president’s “awkward” attempts at pinging the (clay) pigeons.

      This has only happened with the president at Camp David, at most, a couple of times, according to a source who says he has been to the retreat on a half-dozen visits with Obama.

      “The only time he shot skeet was for President’s Cup,” said the source, referring to a shooting competition tradition involving the presidential Marine guards. “I was there. He stayed for about five minutes, and couldn’t leave fast enough.”

      Skeet shooting “is very hard,” said the source. “Especially for someone not used to guns ? He couldn’t have been more uncomfortable.”

      The source said a friend of his recalled Obama skeet shooting one other time at Camp David ? very early on in his first term.

  11. Does anybody believe that that wasn’t the Chicago big-city boy’s very first ever time out shooting?

    1. His dogwashers in the media are already doing an end zone dance about how this makes people who questioned whether BO “shoots skeet all the time” into the same category as birthers.

      I dunno; to me, that picture looks like a Dukakis in the tank moment. I’m sure the “sportsmen” gun owners out there — the people BO is apparently trying to court — will see it as the same. Too bad there isn’t any video of him falling down, grabbing his shoulder and crying.

  12. LOL, I still remember the first time I shot a .30-06. Still just a kid, I knelt down, balanced on my toes, fired, and was knocked on my ass. The kind of lesson you only have to learn once.

  13. Great to see that some Americans still adhere to traditional values and, perhaps, the Constitution. 🙂

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