Lawfare

Debra Burlingame, Guantanamo, Lawfare, War on Terror

Guantanamo detainees receive unprecedented rights under Military Commissions Act

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During a Senate Judiciary subcommittee hearing on legal rights for Guantanamo detainees, Code Pink was there holding up signs and at least one mock detainee, wearing a black hood and orange jumpsuit, was seen changing seats as the witnesses spoke. That was the visual background for this Washington Times report:

Nearly 100 foreign enemy combatants to be tried at Guantanamo Bay will have more rights than Nazi war criminals who faced the Nuremberg tribunal, a Senate panel was told yesterday.

Detainees in the war on terror will have the presumption of innocence and an automatic appeal, the latter not even afforded to U.S. citizens, said Brig. Gen. Thomas W. Hartmann, legal adviser to the Convening Authority for the Office of Military Commissions. “No such presumption existed,” said Gen. Hartmann in reference to Nuremberg while speaking to the Senate Judiciary subcommittee on terrorism, technology and homeland security. “There were no rules of evidence, and virtually any evidence was freely admitted. “That was painfully apparent to those who were found guilty and received the death penalty — they were hung within hours and days of the completion of the sentence announcement,” he said.

Steven A. Engel, Justice Department deputy assistant attorney general, said that extending the peacetime notion of habeas corpus to military prisoners would be “unprecedented.” “In the nearly 800 years of the writ’s existence, no English or American court has ever granted habeas relief to alien enemy soldiers captured and detained during wartime,” Mr. Engel said.

Sen. Benjamin L. Cardin, Maryland Democrat, disagreed with the federal officials and said “these individuals are basically criminals” and that criminals have the right to habeas corpus.

In his opening statement, Senator Jon Kyl (R-AZ) provided details about the (at least) 30 former detainees who have returned to the battlefield to continue their murderous ways:

Senator Kyl then asked BG Hartmann and Mr. Engel about the unprecedented trial rights under the MCA:

Senator Jeff Sessions (R-AL) questioned Debra Burlingame about the effects of the firms conducting public relations on behalf of alleged terrorists (you can read her prepared testimony here):

You can read Mr. Richard Levick’s own words about his firms’ public relations efforts on behalf of alleged terrorists.

al Qaeda, Debra Burlingame, Lawfare

If Guantanamo closes, won’t Gitmo’s guerrilla lawyers just follow detainees?

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Statement (as prepared) of Debra Burlingame

Co-founder of 911 Families for a Safe & Strong America and Sister of Capt. Charles F. “Chic” Burlingame, III, pilot, American Airlines flight 77, September 11, 2001

Before the United States Senate Judiciary Committee
Subcommittee on Terrorism, Technology and Homeland Security

December 11, 2007

Madam Chairwoman and Members of the Committee:

Thank you for the opportunity to be here today to offer my testimony on this subject of vital importance to the American people. The issues surrounding the question of the legal rights of Guantanamo detainees are both novel and complicated. Even the United States Supreme Court, which was prepared last spring to let Congress and a lower court have the last word on the matter, has decided to weigh in once more. No matter which side of the debate one finds most persuasive, clearly, all can agree that these issues and their consequences resonate far beyond the factual circumstances of the 300 or so individuals still detained at Guantanamo Bay.

As we sit here today, 192,000 American men and women in uniform are deployed in some of the most dangerous places in the world. They and our coalition partners continue to take enemy fire, to sustain casualties, to risk their lives in order to attain and preserve the kind of battlefield intelligence that may yield vital, life-saving information in the war on terror. Conferring full habeas corpus rights on alien enemy combatants during wartime is something no English or American court has granted in the 800-year history of Anglo-American jurisprudence. Today, it is our troops who bear the heaviest burden in carrying out the will of Congress. Congress owes it to them and to the American people to consider the full consequences of granting this level of extraordinary relief to the kind of people who detonate IEDs, who use suicide vests to target tourists and commuters, and who crash commercial airliners filled with innocent men, women and children into buildings.

As a former attorney, I have an appreciation for some of the issues that the high court and Congress must take into consideration as they sort through this difficult problem. I know that the Senate has held numerous hearings on the legal issues surrounding Guantanamo detainees. I am not here as a Constitutional expert or a legal scholar. I am here to discuss an issue about which I believe this committee should be aware, and which may be one of the reasons the legal rights of detainees at Guantanamo Bay is on the table today. I believe it goes to the heart of the practical debate, not over the issue of whether a reasonable interpretation of the Constitution does or does not give enemy combatants full access to our federal courts, but whether, in fact, it should. John Adams wrote in 1776 that “we are a nation of laws, not men,” but I would ask, who writes the laws and to what end?

There is no reason why we must be rendered helpless by our own refusal to find creative ways of adapting our laws to reflect the changing circumstances of our times. Americans fundamentally understand and accept that we are a nation of laws, but they do no accept that this means they must surrender their security to terrorists, individuals who would exploit and hide behind our enlightened laws in order to use weapons of mass destruction to kill thousands of people in a single act. Our laws should not leave us defenseless. I simply refuse to believe that “rule of law” means that we must rigidly adhere to a particular line of reasoning when interpreting legal cases—cases which were decided long before modern warfare-by-suicide against civilians became a terrorist tactic—and reach the astounding conclusion that unlawful enemy combatants are entitled to the same due process rights as American citizens and U.S. residents. The terrorists know what kind of impact extending civilian due process rights to groups like Al Qaeda would have. When Khalid Sheikh Mohammed was captured and handed over to the United States, he reportedly initially told his interrogators, “I’ll talk to you guys when you take me to New York and I can see my lawyer.”

Extending litigation rights to people like KSM would deny us valuable information about terrorist organizations, and could cause the deaths, not just of hundreds of people, but of whole populations. Surely being “better than our enemies” doesn’t mean that we are so morally vain that we are willing to sacrifice our children and grandchildren to prove it.