Thursday, July 08, 2004

The Justice Department’s Defacto Admission That Bush Ordered Military Tribunals Because The Government Was Violating The Law


Dear Colleagues:

On several occasions (e.g., on May 13th, May 27th, June 2nd and June 22nd), it was said here and in emails that a major reason George Bush ordered prisoners to be tried by military tribunals was that the Administration knew that its conduct precluded convictions in civilian courts. Under the Constitution, after all, one cannot (1) gain information by holding prisoners incommunicado for months or years while questioning them, denying them access to lawyers for this period, and abusing and/or torturing them while in custody, and (2) then use the resulting information to gain convictions in federal courts. The only way to use the information to gain convictions is to use it in military tribunals that are under orders to ignore the circumstances in which it was obtained (and also to ignore the fact that information obtained in such circumstances, especially under torture, may often be untrue?).

It was also said here that the press had ignored the question of whether a major reason for military tribunals was that the Administration knew its own conduct made it impossible to obtain convictions in civilian courts. One prominent New York Timesman was nice enough to say on June 3rd, after an exchange of emails, that the point made here was valid, and that he was sure the subject would ultimately be pursued by the press.

But it hasn’t been yet. There is only one exception that this writer knows of. The Washington Post puts out a weekly sheet called The National Weekly Edition. It is excellent -- it just might be the best thing done in American journalism. The edition for the week of June 21-27 carried a lengthy article by Scott Turow criticizing the government’s handling of the Jose Padilla case. Turow was especially incensed that, in what seemed a transparent effort to influence the Supreme Court via the media in Padilla’s case (and others), the Department of Justice had held a press conference on June 1st to tell the media and the world what it says Padilla has done. Turow found lots wrong with the government’s conduct in the Padilla case, including the fact that, at the press conference, Deputy Attorney General James Comey "revealed nothing about how the damning statements were wrung from Padilla," and "declined to say that [Padilla’s] confinement and questioning had met the terms of the Geneva Conventions." Then Turow wrote this:

"Probably the most galling moment of Comey’s press conference came when he calmly conceded, "I don’t believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel."

Comey’s statement was an admission that the government was violating the constitutional rules applicable to trials in civilian courts, knew it was doing so, and knew it could not obtain convictions in those courts. And that knowledge would, of course, explain the government’s demand that trials be held not in civilian courts, but before military tribunals (the very point raised here both before and afterwards). But, apparently, the news media did not cover this crucial aspect of what Comey said even though his statements explain the government’s demand for military tribunals. Certainly this writer, a semi-news junkie and avid general reader, who reads The Times, The Wall Street Journal and The Globe every day and looks at The Washington Post and its National Weekly Edition a few days after they appear, saw no mention in the press of Comey’s remark until Turow wrote about it. Nor, it would seem, did the Timesman who said on June 3rd that the point previously made here was valid. Did the press cover the point and this author simply missed it? Considering what I regularly read, please forgive some dubiety. Maybe somebody wrote or spoke of it somewhere in the media -- perhaps that is how Turow learned of it -- but widespread coverage is doubtful.

So it would appear that the media, in line with the normal incompetence which pervades so much of it, has simply failed to make much -- or even make anything -- of the fact that the government chose military tribunals, and in effect has admitted that it chose them, because it knew that under the Constitution it could not obtain convictions in federal courts. Making this worse, the media has made nothing of it even though trying people by military tribunal is another important step on the road to dictatorship, just like the government’s (now rejected) claim that as Commander-in-Chief Bush can ignore the law of Congress. Trying people by military tribunal has historically been just another way of overcoming the rights they otherwise would have under the law.

All of this has, if anything, become only more important after the Supreme Court’s recent decisions. For as many have written, the Court said very little about what kinds of hearings, and exactly what kinds of rights, are necessary for the prisoners held at Guantanamo, in Iraq, and at undisclosed locations in other countries that apparently were chosen in order to be able to torture people. Will the Constitution be satisfied -- despite Comey’s admission before the Supreme Court’s decisions, which conceivably could render his admission "inoperative," as the Nixonians used to put it -- if the government uses statements made while people were held incommunicado for years or were tortured? Will such evidence and other facts learned because of them be admitted in federal courts? In military tribunals? -- perhaps acting under orders. If admitted in military tribunals, will the four appellate reviewers who are said to have been handpicked by Rumsfeld go along with this? And if military tribunals or federal courts are disposed to go along with it -- in theory at least, and maybe in practice too, there conceivably are reasons which justify it -- will the government first have to prove that its actions were necessary to get information to safeguard our military and our homefront civilians, and that such safeguarding information was in fact obtained, so that the claim of necessity is not a mere false abstract allegation made to justify what otherwise could be considered gross misconduct?

There remain lots of crucial questions -- for a media which, as shown with regard to the initial question discussed here, has generally shown itself on a widescale basis to largely be too inept to ask them.*

*If you wish to respond to this email/blog, please email your response to me at Your response may be posted on the blog if you have no objection; please tell me if you do object.

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