The Parade of Horribles Travels to the House

In his recent dissent in that HIV case I blogged about last week, California Supreme Court Justice Carlos Moreno wrote about a hypotehetical example offered by the court's majority "which indulges the rhetorical trick of setting forth an extreme scenario to justify a dubious conclusion." I thought about that good line Wednesday evening when I read the Post's account of yesterday's classic encounter between members of the House Armed Services Committee and Administration officials on the topic of detainee rights.

The federal lawyers came to the House (on Tuesday they went before the Senate Judiciary Committee) to shore up support for the White House's plan to prosecute the Guantanamo Bay detainees under military rules the U.S. Supreme Court last month said were legally dubious. It is up to Congress now to authorize those rules, or another set of procedures that would give the detainees more due process rights, so that the detainees finally can be processed out of Gitmo. But did the Administration officials give their legislative counterparts an honest asssessment of the various options available? Of course not.

Employing the very trick that Justice Moreno identified, Pentagon lawyer Daniel J. Dell'Orto tried to scare the politicians into thinking that their choice is between giving the Administration what it wants (which we already know does not legally work) or giving the detainees the same sorts of rights to which we all are entitled in a regular criminal case. That's a false choice and everyone knows it. No one involved in this dispute, to my knowledge, has ever advocated that the detainees ought to be given the full panoply of rights that civilians or our soldiers are given. Yet that's the position Dell'Orto attacked Wednesday before the House Committee:

"I don't want a soldier when he kicks down a door in a hut in Afghanistan searching for Osama bin Laden to have to worry about . . . whether he's got to advise them of some rights before he takes a statement," Dell'Orto said. "I don't want him to have to worry about filling out some form that is going to support the chain of custody when he picks up a laptop computer that has the contact information for all manner of cells around the world, while he's still looking over his shoulder to see whether there's not an enemy coming in after him."

What a silly thing to say. There are plenty of ways in which the U.S. government could comply with the Geneva Conventions, and the Constitution, and federal law, and still ensure that national security is not compromised during the prosecution of Gitmo detainees. The choice of procedures is not, and never has been, an "all or nothing" proposition. There are vast expanses of middle ground, some of which I've mentioned before in earlier posts, that could generate a compromise. To suggest otherwise, as the Administration lawyers did Wednesday, is nothing but a cheap, rhetorical trick.

By Andrew Cohen |  July 13, 2006; 9:00 AM ET
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Dell'Orto is playing to the crowd. If he is not willing to comport himself like an adult and help solve the problem he should go do something less challenging.

Rep. Duncan Hunter wasn't much better: "It may not be practical on the battlefield to read the enemy their Miranda warnings." Yeah, it may not. It may not be practical to expect these guys to come up with a solution either.

Posted by: MC | July 13, 2006 02:58 PM

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