Monday, June 25, 2007

Separate but unequal justice

Raise your hand if you're surprised by this. Anybody? Anybody? Bueller?

An Army officer who played a key role in the "enemy combatant" hearings at Guantanamo Bay says tribunal members relied on vague and incomplete intelligence while being pressured to rule against detainees, often without any specific evidence.

His affidavit, submitted to the U.S. Supreme Court and released Friday, is the first criticism by a member of the military panels that determine whether detainees will continue to be held.

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only "generic" material that didn't hold up to the most basic legal challenges.

As generally suspected, the panels were a crock. But that's not the best part.

Abraham was asked to serve on one of the panels, and he said its members felt strong pressure to find against the detainee, saying there was "intensive scrutiny" when they declared a prisoner not to be an enemy combatant. When his panel decided the detainee wasn't an "enemy combatant," they were ordered to reconvene to hear more evidence, he said.

When the panel didn't reach the "correct" conclusion, they were ordered to try again. But that's not the best part.

Ultimately, his panel held its ground, and he was never asked to participate in another tribunal, he said.

If you're a panel member and you still insist on delivering the wrong answer, you aren't invited back!

Employ such a filtering technique two or three times, and you could end up with panels that would reach the "right" conclusion nearly every time.

To be fair, this is one man's testimony. We don't know if what happened to him was typical, or whether the decision not to let him sit on any more panels was related to the verdict rendered. More data is needed before firm conclusions can be drawn.

But this is yet another example of why legal shortcuts are a bad idea that almost guarantee miscarriages of justice.

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