"It's a very tricky theme to play out politically," law professor and longtime Obama devotee Geoffrey Stone is quoted saying without a trace of irony or regret near the end of The Terror Courts: Rough Justice At Guantanamo Bay, Jess Bravin's excellent new book. (Read an excerpt here.) The book focuses on the epic and continuing failure of America's military tribunals to process suspects following the terrorist attacks of September 11, 2001. "You are asking people to be better than they have to be."
It's a quote that could be the epitaph for the whole disgraceful affair. At nearly every step of the way, for more than 11 years, our elected officials, military leaders, and judges have failed or refused to be "better than they have to be" when it comes to the treatment of the detainees. "You've got to be kidding me," then-Attorney General John Ashcroft says prophetically, early in Bravin's book. When Ashcroft comes off as a Wise Man you know something is terribly amiss.
Indeed, over and over, when faced with a moral or legal choice as to how to proceed, our government officials chose poorly-- violating foreign and domestic law, precluding civilian trials, sabotaging our own national security, stifling internal dissent, confounding our allies, rewarding bureaucratic mindlessness, and setting up the vaunted military tribunals to fail in a hundred different ways which, of course, they have in the 4,212 days since the Twin Towers fell.
Which is why you should read this book now, while the hunger strike at Guantanamo Bay is growing. You should read it now, while there is a pending request by the Pentagon to spend another $49 million for a new prison on Cuba. You should read it now, while John Yoo is still the go-to guy for quotes about interrogations, and while Senators John McCain and Lindsey Graham, crows on a wire, are still offering up terrible advice about prosecuting detainees.
Three thousand innocent people died on September 11, 2001. We invaded two nations because of it. We lost thousands more in the name of protecting ourselves and killed tens of thousands of people in the Middle East. All of us have lost vital freedoms in the name of national security. And yet, as Bravin reminds us, even 9/11 wasn't tragic enough to jolt the Pentagon and Justice Department and CIA and DIA into avoiding their timeless turf wars.
Come with me to page 100, where the Defense Intelligence Agency--in the form of "a reservist from Chicago, a cop in civilian life named Dick Zuley," writes Bravin--is stonewalling Marine Lt. Col. Stuart Couch, a military prosecutor, over suspect Mohamedou Ould Slahi. When Couch asks for access to "personnel and records" on the case, Zuley tells him, and thus another arm of the government of the United States, to buzz off. Slahi was never prosecuted because he was tortured. And the information he provided was evidently not credible.
Come with me to page 121, where Bravin recounts some of the reasons why "relations between the Department of Defense and the Justice Department remained poor" throughout this period (and, of course, into today as well). "Communicating with the Justice Department was 'a one-way street,'" a tribunal official and Navy officer told Couch. "'We tell them what we know, and they nod their heads. They've given us nothing.' Even the FBI's witness interview summaries," Bravin writes, "known by their form number as 302s, were off limits."
Come with me to page 133, where Bravin shares with us the infuriating details of "mock trial" staged in November 2003 in the case of Ali-Hamza Ahmed Suleiman al-Bahlul, a Yemeni man among the first transferred to Gitmo. "The case against Bahlul lacked only one desirable element," Bravin writes, "evidence of any act of terrorism that Bahlul himself committed." So what happens? A military prosecutor standing in as a defense attorney raises the issue of detainee abuse and is quickly shot down by one of the senior officers present at the "trial."
Come with me to page 160, where Bravin writes about the government's cover-up of the treatment of the aforementioned Slahi. Couch calls a senior Pentagon official assigned to investigate detainee abuse allegations. "You need to look at 760, Couch tells the officer, referring to Slahi's detainee number. "We've already been told we need to look into that one," the officer responds. Later, in March 2005, when a report on detainee abuse is released, there is no mention of Detainee 760 in the 21-page executive summary released to the public.
On and on, the banality of this bureaucracy unfolds in Bravin's work--the courageous are silenced, the hacks are empowered, the truth is subverted, the ultimate goal--the successful prosecution of the prisoners--is sabotaged. In this world, the world our political leaders swore had ended when the Twin Towers fell, reputations still counted for more than prosecutions, turf wars still took precedence over productive collaboration within the executive branch.
This is the genius of Bravin's book--and what sets it apart from what has come before. He doesn't just give us context and perspective about the ideological battles waged among Bush Administration officials over torture. He doesn't just explain why the Obama Administration still has failed to recover from the early errors of judgment that marked the first tribunal processes. He also highlights the utterly self-defeating role played by the military-political complex.
These revelations are among the most insulting aspects of the legal war on terrorism. For the past decade, we've debated the use of torture and the damage it has done to our rule of law and standing in the world. The nation is divided on that, it's fair to say. But is the nation divided on whether our government should have been able to rise above petty bureaucratic battles to fairly and efficiently try suspects like Khalid Sheikh Mohammed? I don't think so.
Will Bravin's book change anything? You tell me. The White House will continue to protect its tribunals, even as current battles between intelligence agencies rage within the executive branch. To the extent Congress will provide oversight it will be to push the administration toward more self-defeating tribunal rules. And the federal judiciary, by that I mean the Roberts Court, will continue to sit on the sidelines and defer to the other two branches.
On the tribunals, we didn't do it right the first time. Then we made it worse. Then we failed or refused to fix it. And now we are stuck with an incomprehensible mess. Hey, at least America can declare one more victory against the enemy. Al Qaeda struck out against us hoping to change the world as we knew it. But it turns out they had no chance against the most powerful force in America today: the power of our bureaucracy to foul up even the most important tasks.
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