Pentagon v. Dep't. of Justice: New Rift Opens Over Rights of Detainees

By GottaLaff

Agence France-Preese/Getty Images

I'm bumping and updating. Here is an interesting e-mail response to this piece that I got from an old pal who serves in the military. We correspond from time to time:

There is a battle on going between the lawyers over at the Pentagon and the DOJ as to which protections if any should be extended to the detainees; it's window dressing to give the appearance that detainee's rights are seriously being discussed. In short it is all bullshit so that Faux News can say see, you are coddling the terrorists on the one hand; and the liberals will see serious discussion as fundamental rights is in play. In the end it really is just rearranging the deck chairs on the Titanic system of justice they both want.

What both sides (Pentagon/DOJ) want to avoid is Federal District Court because they will lose control in a real system judicial system. What is left is Military Court Martial which also has established rules so neither desire that; so what each side wants is to appear concerned but in control.

Remember under a Military Commission process the DOJ will be the prosecutors (of course there will be few military prosecutors for appearances, but the DOJ will the call the shots {the really concerned ones in this story}), while developing the rules of evidence and controlling what evidence is revealed to the defense. I believe this story was first given to the WSJ to say hey "they want the worst of worst given rights and living in your neighborhood." It really is just window dressing between to competing groups who have the same goal, "develop a system around factually weak cases, and then claim it was fair."

And let's not forget who owns the WSJ.

Original post:

Picking up on a link Paddy posted earlier, at least it's a positive that this subject is getting more attention. As you know it's become a cause of mine. Here's the latest wrinkle in the Pentagon v. DoJ:

The Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations, officials said.

The conclusion, explained in a confidential memorandum whose contents were shared with The Wall Street Journal, could alter significantly the way the commissions operate -- and has created new divisions among the agencies responsible for overseeing the commissions.

Defense Department officials warn that the Justice Department position could reduce the chance of convicting some defendants. Military prosecutors have said involuntary statements comprise the lion's share of their evidence against dozens of Guantanamo prisoners who could be tried.

So Defense is unhappy because coerced statements can't be used to convict their abused clients? Did I get that right?

The Obama Justice Department's view is a sharp turn from that of the Bush administration, which argued detainees have no constitutional rights. It isn't clear how the Obama administration will act, but the Justice Department's legal counsel's office traditionally has the last word on constitutional interpretation in the executive branch. The White House declined to comment.

The dispute over what rights military commission defendants can claim has intensified as President Barack Obama tries to implement his decision to close the Guantanamo prison by January. [...]

Since 2004, several aspects of the commissions and their related detention system have been invalidated by the Supreme Court. A Justice Department task force has been seeking ways to try prisoners by military commission that would be more likely to survive further constitutional challenge. The task force is scheduled to complete its work by July 21. [...]

In a memorandum issued May 4, David Barron, acting assistant attorney general, said the office believes there is a "serious risk" that federal courts "would adopt a constitutional due process approach" when evaluating military commission trials, people familiar with the memo say.

Mr. Barron advised that federal courts were unlikely to require strict adherence to Bill of Rights provisions spelling out specific procedures, such as the Sixth Amendment speedy trial right, or the Miranda warning, which the Supreme Court imposed in 1966 to ensure compliance with the Fifth Amendment right against self-incrimination and the Sixth Amendment right to an attorney.

But Mr. Barron advised that courts were likely to view the use of coerced statements to convict and punish defendants as violating any definition of the Fifth Amendment's Due Process Clause, which courts have cited in establishing a baseline of fundamental rights. As a result, some officials believe a legislative fix to the Military Commissions Act should include additional rights for defendants in order to lower the chances courts would strike it down.

Senate Armed Services Committee Chairman Carl Levin (D., Mich.) said Friday he has included language in a pending defense authorization bill to make commissions more closely resemble courts-martial. A 2006 Supreme Court opinion suggested military commissions could be lawful if their deviations from "court-martial practice" were justified by "practical need." The text is expected to be released this week.

Now, think: Why is David Barron handling all of this....

Mr. Barron, a professor on leave from Harvard Law School, is in charge while Mr. Obama's nominee to head the legal-counsel office, Dawn Johnsen, awaits Senate confirmation. Mr. Barron's conclusion has met Pentagon opposition. "We believe that military commissions, as distinct from other courts, are designed to not provide constitutional rights," Navy Capt. John F. Murphy, the Obama administration's chief military prosecutor, said in an interview.

The one exception, he said, was that created by the Supreme Court last year, when it ruled the Military Commissions Act of 2006 unconstitutionally stripped Guantanamo detainees of habeas corpus, a legal proceeding to challenge unlawful detention. [...]

"There is a school of thought...that if they actually convene these things in the [U.S.], the courts will quickly find that all the due process constitutional stuff we deal with in criminal courts will be applicable," said another military official familiar with the talks. "The main push for this argument comes out of" the Justice Department and the Office of Legal Counsel, the official said. "It hasn't gotten a lot of traction with other folks."

"Constitutional stuff"?

This person said Pentagon officials preferred not to provide defendants additional rights unless courts forced them to.

What do Gitmo lawyers say about all this?

On the other side, criminal defense lawyers representing Guantanamo detainees say that simply recognizing due process, without other constitutional rights, will not fix a system they contend is stacked against defendants. "The minute they're making a distinction of 'what we can get away with'...they are creating something of dubious legal viability," said Cmdr. Suzanne Lachelier, a Naval Reserve lawyer appointed to represent alleged Sept. 11 conspirator Ramzi Binalshibh.

By trying to patch a system that has been beset for years by internal disarray and court setbacks, "they are buying themselves more legal problems," she said. Rather than the "swift and certain justice" that President Obama has promised, it "means years of appeals when we're challenging all of these issues -- most of which have already been resolved" for trials in courts-martial or federal court, she said.

What a mess. It's no wonder Lt. Col. Barry Wingard and his client, Fayiz al-Kandari, are so frustrated.

If you'd like to scroll through every post I've written on this subject, most of them eye-openers, please go here. That link includes audio and video interviews with Lt. Col. Wingard, one by David Shuster, one by Ana Marie Cox, and more. My guest commentary at BuzzFlash is here.

If you use Twitter, the hashtag is #FreeFayiz. We have organized a team to get these stories out. If you are interested in helping Fayiz out, e-mail me at The Political Carnival, address in sidebar to the right; or tweet me at @GottaLaff.