{"id":1387,"date":"2013-07-22T13:25:46","date_gmt":"2013-07-22T13:25:46","guid":{"rendered":"http:\/\/www.hamiltonbookreviews.com\/reviews\/?p=1387"},"modified":"2015-06-10T12:50:31","modified_gmt":"2015-06-10T12:50:31","slug":"the-terror-courts-rough-justice-at-guantanamo","status":"publish","type":"post","link":"https:\/\/www.hamiltonbookreviews.com\/reviews\/the-terror-courts-rough-justice-at-guantanamo\/","title":{"rendered":"\u2018The Terror Courts\u2019: rough justice at Guant\u00e1namo"},"content":{"rendered":"

\u2018The Terror Courts: Rough Justice at Guantanamo Bay\u2019

by Jess Bravin

Yale University Press, 448 pp., $30


\n
The United States has long prided itself on the strength of its judicial system and its respect for the rights of criminal defendants. For more than 200 years, our justice system has withstood war, economic depression and even foreign invasion. Until Sept. 11, 2001.


In the aftermath of those horrific attacks, both anti-Taliban groups and American troops in Afghanistan rounded up hundreds of detainees. President George W. Bush signed an Executive Order authorizing the establishment of a prison camp at Guant\u00e1namo Bay where they would be tried by military commissions. Drafted by conservative ideologues from Vice President Cheney\u2019s staff, the Order established a commission system almost entirely under Presidential control. Worse, the President secretly authorized brutal interrogation techniques. In hearings before the commissions, neither the rules of evidence nor the safeguards applicable in military courts martial would apply. Indeed, hearsay and even confessions produced from torture would be admissible if deemed \u201creliable.\u201d

In \u201cThe Terror Courts,\u201d Jess Bravin vividly recounts the struggles both inside the administration and with the U.S. Supreme Court over the Commissions and its operations. Bravin, a lawyer who covers the U.S. Supreme Court for The Wall Street Journal, provides a fascinating, if depressing, overview of the Bush administration\u2019s approach to the detainees.

Guant\u00e1namo was intended to serve as the \u201clegal equivalent of outer space,\u201d where the prisoners would have no recourse to outside lawyers or courts. But military lawyers assigned to represent the detainees immediately challenged the commissions\u2019 jurisdiction. The case ultimately was appealed to the U.S. Supreme Court.

The young Georgetown law professor who argued the case, Neal Katyal, was an odd choice, having never appeared in any significant litigation. He was so nervous that he used a \u201clitigation coach\u201d to calm his nerves by holding hands and practicing before eight stuffed animals before the argument. Despite his inexperience, however, the Supreme Court, in Hamdan v. United States, struck down the effort to try the detainees before commissions.

Congress quickly passed the Military Commissions Act to reauthorize the commissions and to provide at least some due process rights. But the problems were only beginning.

The abuse of the detainees, including waterboarding and brutal interrogation techniques, complicated many of the cases. Marine Lt. Col. Stuart Couch had joined the prosecution team after one of his former squadron buddies, a United Airlines pilot, died on 9\/11. But sorting through the files, he was disgusted by the horrific abuse rained down on the detainees, spoiling any chance of fairly trying them.

After several false starts, the administration settled on Salim Hamdan, a driver for Osama bin Laden. Hamdan\u2019s trial, though, hardly turned out as the administration hoped. The commission acquitted Hamdan of \u201cconspiracy\u201d and convicted him instead of the catchall \u201cmaterial support for terrorism\u201d charge. The Commission then rejected the government\u2019s request for a 30-year sentence and, after credit for time served, sentenced Hamdan to only five months. Even that conviction was overturned on appeal.

In the end, of the 778 detainees once held at Guant\u00e1namo, only 166 remain, the government quietly conceding that the vast majority could not be convicted. As a nation, we suffered an incalculable loss on 9\/11. But the sacrifice of our constitutional principles in reaction did nothing to avenge that loss. Bravin\u2019s thoughtful history teaches a painful lesson. It should be required reading.
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