Guantanamo Pushback: How Principled Men and Women in the Military Justice System Resisted Encroachments on Civil Liberties

By Silverglate, Harvey | Reason, June 2013 | Go to article overview

Guantanamo Pushback: How Principled Men and Women in the Military Justice System Resisted Encroachments on Civil Liberties


Silverglate, Harvey, Reason


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, a Supreme Court reporter for The Wall Street Journal, describes with dismay how the George W. Bush administration attempted to create a shadow justice system for dealing with foreigners and Americans whom the executive branch considers perpetrators and facilitators of terrorism. Wielding no partisan ax, Bravin laments President Barack Obama's failure to renounce many of the same executive powers.

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

[ILLUSTRATION OMITTED]

It is no secret that sectors of civil society--civil liberties groups, the organized bar, much of the news media--battled Bush and his henchmen (and now Obama and his henchmen) over abuses of civil liberties by military tribunals. Bravin shows that such critics had allies within the government. To the extent that liberty and due process have survived, they endure largely thanks to government employees and military officials who rebelled against, and in subtle ways worked to undermine, what they saw as threats to the nation's fundamental institutions.

Military commissions, established by the U.S. Military Commissions Act of 2006, were designed to try terrorism suspects based on evidence and procedures that would never hold up in either a court martial or a federal court. For instance, the president's men frequently attempted (often successfully) to use the fruits of coercive interrogation techniques--torture, in the eyes of many within the military justice system--as evidence in tribunals.

Yet the commissions never become kangaroo courts. You can give part of the credit for that to unexpectedly assertive federal courts, which pruned back the administration's expansion of executive power, and part to an occasionally assertive Congress. But Bravin shows, in fascinating and often dramatic detail, how members of the security agencies themselves pushed back against the changes, thwarting the White House's desires. 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 did the principles of their superiors.

Marine Lt. Col. Stuart Couch, an ROTC lawyer, repeatedly refused to prosecute terrorism suspects whom he concluded had been tortured by CIA agents. Navy Lt. Commander Charles Swift, the lawyer appointed by the Pentagon to wrest a guilty plea from captive Salim Hamdan, ignored his marching orders and instead advised his client to fight rather than make a deal. The ultimate result of Swift's efforts was the Supreme Court's 2006 ruling in Hamdan v. …

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