‘What Americans Stand For’

Bulls--t. There are 400 and something lawsuits filed against our guys complaining about the food, the TV access, all kinds of crap. Prisoners of war don’t sue their captors .... Habeas rights came about because the Bush administration took such a hard line. What we did last year [in the Detainee Treatment Act] is say, dismiss those lawsuits about conditions of your imprisonment, replace that with a right to go to ... the D.C. Court of Appeals and you can appeal whether or not you were validly confined as an enemy combatant ... They’ll have their day in court to challenge whether or not the government has properly confined them ... But we’re not going to give them the ability to bring medical malpractice lawsuits.

But the Guantánamo detainees have been declared enemy combatants at Pentagon hearings which were not real trials. They had the same flaws you just said you don’t want to see in these military commission trials. The detainees weren’t able to see the evidence against them.

They do get redacted versions of why they’re an enemy combatant. Under a law of armed conflict, you can have one person say, ‘OK, you’re an enemy combatant. This is a military decision.’

But isn’t the practical effect of all this going to be the small fry—not the big September 11 conspirators like Khalid Sheikh Mohammed—but the small fry will stay there indefinitely without having the right to challenge any of the evidence against them?

That was true of the Germans and the Japanese ... But here’s the practical effect. If you’re a small fry and you’re not dangerous, and we got all the intelligence we can get out of you, well, we’ve let 230 go. We don’t have a desire to keep these people in jail, we don’t want to be the world’s jailors ... But if that person is truly a member of an enemy force that is committed to your destruction, you don’t have to let them go. And there’s no requirement to try him as a war criminal. That’s the way war works.

I’ve been hearing from all these defense lawyers who say the process is pretty unfair regardless.