Friday, February 22, 2008
The former chief military prosecutor for the Guantanamo Bay tribunals, Colonel Morris Davis, will testify on behalf of detainee Salim Hamdan. Last year, Davis resigned alleging that politics were driving the prosecutions at Guantanamo. In an interview Morris claimed that DOD general William Hayes told him that none of the Guantanamo detainees could be acquitted, suggesting that the tribunal system had predetermined outcomes. (Jurist story; AP story; UPI story).
In earlier reports in the New York Times and Wall Street Journal Davis claimed that he was under political pressure to try cases in violation of commission rules and international law.
The Supreme Court refused to hear the ACLU's challenge to the Bush Administration's warrantless surveillance program (WP story). ACLU lawyers represented lawyers, journalists and others in challenging the legality of the administration's warrantless wiretapping program. The 6th Circuit Court of Appeals ruled that none of the plaintiffs had standing because they couldn't prove they had been monitored. The Sixth Circuit's opinion in ACLU v. NSA is available here. The decision creates an ironic legal absurdity. By violating federal law and refusing to seek warrants the Bush Administration keeps the targets of its surveillance secret. And by keeping the targets secret they effectively prevent anyone from having standing to challenge the program in court. In other areas of law courts have ruled that when a defendant hides its illegal behavior it cannot avail itself to equitable doctrines preventing suit - like the statute of limitations for example.
The Washington Post published a story last week titled "Court Rejects ACLU Challenge to Wiretaps." In the first sentence it claimed, "The Supreme Court rejected a challenge Tuesday to the Bush administration's domestic spying program." This simply is not the case. The Supreme Court merely refused to hear the case - expressing no opinion on its merits. Later the Post changed the first line of the story to read: "The Supreme Court yesterday declined without comment to hear the American Civil Liberties Union's challenge of the Bush administration's domestic spying program."