The Inside Assyria Discussion Forum

=> + The great CF at GITMO

+ The great CF at GITMO

Posted by Andreas (Guest) - Friday, December 19 2003, 9:20:47 (EST) from 80.142.237.199 - p508EEDC7.dip.t-dialin.net Network - Windows 2000 - Internet Explorer Website: http://jurist.law.pitt.edu/forum/jones/jones4.php Website title:

http://jurist.law.pitt.edu/forum/jones/jones4.php THE CHARLIE FOXTROT AT GUANTANAMO Professor Darryll Jones University of Pittsburgh School of Law JURIST Guest Columnist [Editor's note: Professor Jones has applied for and received provisional recognition as Qualified Civilian Defense Counsel, making him eligible to appear before US Military Commissions established to try terror suspects. This column is the fourth in an exclusive series Professor Jones is writing for JURIST on terror trials and his experiences.] There is a phrase military people use to convey the fact that something is just totally screwed up. That phrase is “Charlie Foxtrot” and it has nothing whatsoever to do with ballroom dance. Expressing its exact etymology while maintaining proper decorum is difficult, but here is a good explanation. Charlie Foxtrot is the long version of the initials “C.F.” The “C” stands for the word “Cluster”, while the “F” stands for . . . well, the F stands for the F word. Ask a veteran if you still miss the meaning. Anyway, when used together the two words convey the sense that a given situation has been completely mishandled, resulting in a total mess. Such is the case at Guantanamo. The most common usage for the C.F. phrase - demonstrated by generations of privates and generals alike -- is in the following sentence: “Who in the hell is responsible for this Charlie Foxtrot!?” That question seems appropriate now that the Supreme Court has agreed to hear the appeal of several detainees held at Guantanamo Bay Naval Base (GITMO). Not that the Supreme Court has no legitimate role in the orderly functioning of our society. But it is safe to say that the Court exercises its discretionary jurisdiction only as needed to clean up someone else’s, or sometimes even its own, mess. And a huge mess is exactly what we have at GITMO. Some 660 detainees have been held for nearly two years without any hint that they might be afforded due process. Civil libertarians and even friendly governments who are fighting the war on terror alongside the United States are questioning our moral authority. British courts, respected American military veterans, former diplomats and ex-POW’s (some of whom even survived the Bataan Death March), are asking “Who in the hell is responsible for this Charlie Foxtrot?” Before answering that question, let us first look at the process of lawyering, particularly as that art is practiced in times of crisis. Every general counsel, every criminal lawyer, even every tax lawyer knows that it is better to incur a little more time, a little more expense or even a little more inconvenience if doing so significantly decreases the chances that a client might be hauled into court to explain himself. Going to court is an inherently risky proposition and carries with it the real possibility of an embarrassing and expensive loss. Indeed, a client who finds himself before the bar of justice has, in a sense, already lost, even if he is ultimately vindicated as a technical matter. This is all the more true during times of crisis as things can quickly get out of hand when cool heads don’t prevail. The lawyer’s goal, of course, is to achieve the client’s legitimate needs with the least amount of risk and expense, however defined. On this score, one can only conclude that those responsible for recommending the use of GITMO as a lawless detention center for al Qaeda and Taliban detainees have failed miserably. The present legal strategy is likely to cost far more than is necessary to achieve the ultimate goal. Instead of carefully and inexpensively guiding the Executive through a proverbial minefield, those advisors have needlessly provoked what is surely to erupt into a Constitutional showdown between the Judiciary and the Executive, not to mention the nearly-unanimous condemnation of allies and adversaries alike. Consider the Justice Department’s argument in support of its assertion that no court anywhere in the whole wide world has the authority to review the President’s authority to do as he pleases at GITMO. The argument, boiled down to its essence, is that the naval base at Guantanamo is not “sovereign” U.S. territory, and that instead Fidel Castro’s government is the ultimate sovereign. Hence, U.S. courts have no authority to even inquire into the legality of the conditions and legal process under which detainees are held. But just think what would happen if Cuba - the ultimate sovereign over GITMO according to the Justice Department - were to suggest building so much as a lemonade stand on GITMO. More seriously, what would be the U.S. response if, however unlikely, a Cuban official decided to exercise that supposed ultimate authority to order the immediate trial of all detainees and the repatriation of those found not guilty. The answer is so obvious as to make the assertion of Cuba’s “ultimate sovereignty” laughable. Yet that is the true basis upon which the Justice Department relies in advising its client that the Courts have no authority to consider the legal authority to hold those detainees until “the end of the war on terror.” However preposterous the Justice Department’s preferred argument may be, its ultimate position might nevertheless be defensible. In fact, the DOJ’s brief in opposition to the petition for certiorari asserted in a mere footnote that perhaps the Supreme Court should stay out of this complete mess until the President has an opportunity to more thoroughly subdue the enemy at the gates. This, of course, is a legitimate, even if debatable, proposition. Which point brings us back to the art of lawyering. Why, in the presence of such a legitimate assertion would an attorney opt instead for an argument that is preposterous on its face? Why have they found it necessary to allow the situation to even get this far? Some observers actually think the preposterous argument - that Fidel has ultimate sovereignty over GITMO -- has a chance to prevail. Anything is possible. But the victory will be pyrrhic, indeed. If the Supreme Court - out of sense of deference to the executive branch - agrees that Fidel is the ultimate sovereign over GITMO it will have spent a large portion of its legitimacy both at home and abroad. It will reasonably be viewed as just another tool of the executive branch, rather like the courts in China who ostensibly adhere to a constitution that asserts the right of freedom of assembly and religion while also imprisoning members of Falun Gong. If, on the other hand, the Supreme Court - in an exercise of intellectual honesty and fidelity to the rule of law and indisputable fact - decides otherwise, the Executive Branch will have suffered a setback in the war on terror that everybody wants it to win. A loss might open the doors to all sorts of civilian judicial supervision of the detainees at GITMO. Either way, the price for the present legal strategy will be unnecessarily high. How might this price have been avoided? Simply, and with much less risk or expense. The Geneva Convention imposes very minimal requirements with which the Executive Branch could have complied, without sacrificing its goal of detaining enemy combatants at GITMO and getting on with the war on terror. For example, the Geneva Convention requires only that a bare bones hearing be held to determine the status - as either POW or not - of detainees. Intricate rules of evidence would not have been required, the right of cross examination might have been foregone, and even the presence of counsel could have been avoided at this initial status determination. Grand juries rely on such minimal process all the time. By its very terms, the Geneva Convention recognizes the exigencies of conflict and allows for such bare bones procedures. But instead of taking this simple, inexpensive and relatively risk free step, the President’s advisors decided that the case ought to be won the hard and most expensive way. They decided and sought to justify, by purest legal sophistry, doing absolutely nothing while 660 human beings sat and still sit, the world looking on in utter and helpless amazement. Had their been some ongoing judicial process with regard to the detainees it is a virtual certainty that the Supreme Court would not have felt compelled to intervene, at least not until that ongoing process had been completed. There is a tradition in this country that every higher court keeps its peace until a lower tribunal completes its ongoing process. This tradition holds, however, only when there is in fact an ongoing lower process. Our Executive Branch lawyers should have impressed upon their client the clear advantages of undertaking the simple expedient of a status hearing for detainees and then trying detainees before military commissions. The Supreme Court, not to mention the rest of the civilized world, would have had reason to conclude that due process was ongoing, albeit slowly. The cost of this approach would have been far less than the cost of backing the Executive and Judicial branches into a contest from which one or the other, along with the rest of us, must necessarily lose. There is still a chance, however, that the Executive's advisors might yet better demonstrate and put to use the art of lawyering. They could do so by advising the President to begin the process of military tribunals immediately. It will only make it more difficult for the Supreme Court or the Executive to maintain any sense of legitimacy if, by the time the present case comes up for oral argument, there are still no detainees who have been granted access to any sort of judicial process. Certainly, there are issues to be confronted in the processes established for those tribunals. But those issues cannot begin to be resolved whilst the detainees sit and wait, day after day. The innocent among them - and surely there is at least one -- must be asking “who in the hell is responsible for this Charlie Foxtrot?” Unfortunately, the Supreme Court will, in one form or another, now be obliged to provide both an answer and a solution to that question - an outcome that will be expensive and unpleasant in any event. It would have been so much better had those responsible not created the Charlie Foxtrot in the first place. Darryll Jones is a professor of law at the University of Pittsburgh School of Law November 12, 2003 --------------------- - BACK TO INDEX - REPLY - QUOTE - EDIT - DELETE -

The full topic: Here's da info + docs ... Andreas - Friday, December 19 2003, 3:13:29 (EST) On the other hand ... ( ! ) Andreas - 12/19 03:47 + The great CF at GITMO Andreas - 12/19 09:20 CF = Cluster Fuck Andreas - 12/19 09:47

Accept: image/gif, image/x-xbitmap, image/jpeg, image/pjpeg, application/vnd.ms-excel, application/msword, application/x-shockwa... Accept-encoding: gzip, deflate Accept-language: de Cache-control: no-cache Connection: Keep-Alive Content-length: 11141 Content-type: application/x-www-form-urlencoded Cookie: *hidded* Host: www.insideassyria.com Referer: http://www.insideassyria.com/rkvsf/rkvsf_core.php?On_the_other_hand-9JYv.QSgy.REPLY User-agent: Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.0)

Powered by RedKernel V.S. Forum 1.2.b9