The Gang That Couldn't Try Right

What do you get when you combine a stubborn White House with an arrogant Pentagon, an ineffectual Congress and a distracted and deferential Supreme Court? Six years (and counting) of missed opportunities, false starts, backward steps and inertia in the effort to prosecute hundreds of terror detainees at Guantanamo Bay. You've heard of the Gang That Couldn't Shoot Straight? We are burdened by the Gang That Couldn't Try Right.

Newsweek this week is offering up an interesting piece that unfortunately highlights only some of the chaos and "dysfunction" that has marked the government's effort to try terrorism suspects captured after Sept. 11. The piece focuses on some of the practical problems of prosecuting men who are allegedly part-soldier, part-terrorist and part-criminal. But the real shame of the military commissions at Guantanamo is not that these practical problems still exist; It's that the White House and Pentagon have made the problems worse by insisting on unrealistic and unfair rules governing the process.

The complete story is more infuriating than what Newsweek offers. Sure, the detainees present military lawyers with new challenges-- for example, how to deal with classified information at trial or what to do with detainees who were "interrogated" in a manner that would make their "confessions" inadmissible in our civilian courts. But the White House, the Pentagon and Congress have refused to compromise with the Supreme Court to reach an accord on what the rules could and should look like. The hapless Military Commissions Act of 2006 is only the latest example of this half-hearted push to do things right.

And, sure, there are good military officials strugging within the confines of a massive bureaucracy to do the right thing. But there are also, alas, too many cases like the one Newsweek profiles-- the case of leading war-crime prosecutor Col. Morris Davis, who quit last week after losing a turf battle with a superior officer over tribunal rules. Remember JAG lawyer Charles Swift? He was as good as it gets at the Pentagon, and yet, when he won a case before the Supreme Court on behalf of a detainee, it was curtains for his career. Who wins and who loses when that happens?

There is simply no excuse for the government's continued failure to develop a legally-sound, constitutionally-valid and workable tribunal process for the detainees. Too many good and brave military lawyers have being castigated and forced out because they failed or refused to go along with a sleazy strategy that put success (convictions) ahead of minimal fairness. Too many venal politicians, bureaucrats and wonks have tried to have their cake and eat it too; tried to manipulate military law and due-process principles to push ahead with self-defeating rules.

The story of the Guantanamo Bay detainees-- the story of their six years of waiting-- is a colossal failure of creativity and imagination and concern. And you just know that it never would be tolerated, legally or politically, if the people it affected most were anything other than who they are.

By Andrew Cohen |  October 8, 2007; 7:52 AM ET
Previous: The New Court Term, Clearly | Next: The 'Roe v. Wade of Securities Law'


Please email us to report offensive comments.

No sense in this, unless the White House wanted to keep people locked up as long as its administration was in office, by taking advantage of the slow pace of the judicial system.

Wheels grind slowly, but they grind exceeding small, is an apt description of the system. Beware of the end result, those who trample on rights, unless of course, the fix is in at the Supreme Court.

Posted by: ulterior | October 8, 2007 10:14 AM

It would not be tolerated if we -- the American people -- had not forgotten who we are. Bush's campaign of fear has brought out the worst in us. The US feels as the South did in the 1950s. We have taken giant steps backward under Bush and I doubt that the way forward exists. It certainly is not articulated by any of our political leaders. History will look back on this moment as not just a time of very bad decisions by the government but also of the complete failure by an opposition to counter those decisions. Instead, we get "triangulation" designed to gain power but not to exercise it for any purpose other than maintaining it.

Posted by: H R Coursen | October 8, 2007 10:18 AM

This shows us the results of twice voting for a man who has no sense of perspective. President Bush is one elephant that needs a whole troop of daddy's men to clean up after his walk down the parade route. He has never done anything incompetent enough to let him know the consequences of his actions. Someone was always there to sweep up his droppings.

Can't show up for National Guard meetings in Texas? No problem; just transfer to Alabama and fail to show up there. He couldn't find oil in Texas? Just sell the failed oil company to daddy's friends. Had no money of his own? Again, that isn't an issue. Take the money from the failed oil company and invest it in a baseball team whose infrastructure was largely funded by the state of Texas.

If you can't win an honest election, get the highest court in the land to hand it to you. If you can't catch bin Laden, say he isn't worth chasing. If you can't win one war, just start another and perhaps another one after that. The Democrats are feckless, so there's no need to worry.

Bush is lucky that he "serves" an electorate that knows more about "American Idol" than it does about even recent history. This is an electorate that swoons every time this religious guy talks about his "other father" and "family values." I am not a Biblical scholar, but I'll bet that Christ never advocated attacking a country for oil.

Posted by: Paul H. | October 8, 2007 01:23 PM

No matter how an individual looks at it, really, no system of jurisprudence can be considered "civilized" wherein those charged with criminality have no recourse to all evidence brought against them and unbiased and unfettered representation. For what is the gratification to be celebrated when a conviction is won where the justice process itself was illusory and an affront to the dignity of all those involved?

Posted by: Tony | October 9, 2007 08:19 AM

Gee, the last I heard is that the detainees were mostly ununiformed fighting US troops on a battle field and were captured. Since they had declined to wear uniforms identifying themselves as the enemy, one must conclude they were spies or opportunistic criminals. In reality they should have been tried by the commander of the army that captured them and shot them on the battlefield.

Some of our uniformed soldiers have been captured and slaughtered by having thier heads sawed off with a machette type knife. I think we are being extremely generous by permittting this scum to even breathe.

These are spies and criminals caught in the act of killing or attempting to kill our uniformed soldiers. they are not enemy combatantsthey are POWs, they are sneaky killers and do not deserve any consideration other than a firing squad.

Posted by: gyrotyro | October 9, 2007 10:32 AM

Unfortunately many of the detainees appear to not be soldiers or terrorists, but just Iraqis or Afghanees who were ratted out by neighbors, "friends", enemies, and even terrorists. We hold them because we don't know how to say we screwed up. When you have no standards for evidence you also have no way of determining if those you hold actually did any thing. So, the bushies torture them until they confess. Where did we learn that? Oh yeah Stalin.

Posted by: Samson | October 9, 2007 12:40 PM

The Bush administration is a lawless administration that conducts almost all of its domestic operations clandestinely. The torture of Islamiacs, while markedly unconscionable, is a red herring. Most of the administration's extreme abuses are directed at business and political competitors at home. That's how "business" is done.

Posted by: Singing Senator | October 9, 2007 12:44 PM

Question: If most or even some of the detainees are guilty of terrorism or trying kill American troops... then how hard can it be, almost six years in, to find them guilty? In a court martial, or civilian trial?

Years of detention mean American investigators, and possibly those of our allies, have had that long to bring evidence that those being held are the bad guys. No need for this overarching cloak of secrecy that the administration always uses. Hamdan was bin Laden's driver. You would think that DoJ, NSA or the umpteen intelligence agencies out there under the DNI would have something on Hamdan or the hundreds of other detainees.

If they're guilty, NAIL THEM TO THE WALL.

If not, follow US law. It's worked pretty well for about 200 years.

Posted by: CRix | October 10, 2007 03:00 PM

I don't know about "nailing to the wall"-that sounds extremely nasty.

Posted by: | October 11, 2007 01:47 PM

Post a Comment

We encourage users to analyze, comment on and even challenge's articles, blogs, reviews and multimedia features.

User reviews and comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions.


© 2007 The Washington Post Company