House Blocks U.S. Trial Of Guantanamo Detainees
Somewhere in the course of my 40 years, I picked up the phrase "cranial-rectal inversion." I can't recall whether I made it up or acquired it elsewhere. It sounds like something my first and very colorful First Sergeant at Fort Bragg, 1SG Taylor, would have said. So, I'll give the credit to him. I loved and revered that man. I attribute my strong sense of honor to a handful of men and women, not least among them Top Taylor. I don't know if Bill Cosby has a brother, but Top Taylor's mannerisms and sarcastic sense of humor always reminded me of Bill Cosby. When one of us younger troops did something stupid, Top would berate us and tell us we suffered from cranial-rectal inversion. In other words, the troop had his head up his ass.
The first phrase that came to mind when I saw the report that the House voted to block trials in U.S. civilian courts of Guantanamo detainees was "cranial-rectal inversion." It appears that many in this country, including but not limited to Democratic members of congress, have their heads up their collective ass. It appears that many, including but not limited to members of Congress, do not understand or have little faith in the efficacy, expertise and experience of
Article III courts and, more importantly, a poor understanding of constitutional
Due Process and the
Equal Protection Clause. On the other hand, it may be that people have too much faith in the experience, strength and rigor of federal trial courts, too much faith in the adherence by federal trial courts to the
Federal Rules of Evidence. How else do you explain the impetus behind the decision to push to avoid trials in them? How else do you explain the apparent preference to try Guantanamo detainees in military tribunals where the standards governing the admissibility of evidence are significantly weaker? Do we think that convictions of Guantanamo detainees are more likely in military tribunals than in federal court? Does that not presuppose that we've already concluded that the detainees are guilty, and that the surest way to obtain that pre-determined, desired guilty verdict is to conduct trials in the forum with the weaker rules, the forum in which we believe obtaining guilty verdicts is more certain? Is that not the definition of a kangaroo court? A kangaroo court's proceedings deny
due process rights in the name of expediency. Such rights include the right to summon witnesses, the right of cross-examination, the right not to incriminate oneself, the right not to be tried on secret evidence, the right to control one's own defense, the right to exclude evidence that is improperly obtained (
e.g. by torture or "enhanced interrogation"), irrelevant or inherently inadmissible,
e.g., hearsay, the right to exclude judges or jurors on the grounds of partiality or conflict of interest, and the right of appeal. It is also worth noting, the United States Supreme Court (SCOTUS) in 2006 in
Hamdan v. Rumsfeld ruled that trials of detainees in military tribunals violated both U.S. law and the
Geneva Conventions. In December 2006, in the wake of
Hamdan v. Rumsfeld, the
Military Commissions Act of 2006 was passed and authorized the establishment of military commissions subject to certain requirements and with a designated system of appealing those decisions. A military commission system addressing objections identified by the U.S. Supreme Court was then established by the Department of Defense. Litigation concerning the establishment of this system is ongoing.
Is that what we, this nation of laws, want--kangaroo trials of "enemy combatants" in a system that has been determined by SCOTUS to violate US and international law, and the legitimacy of which is being determined in litigation? Is that where we are? Has our collective national psyche been so damaged that we are willing to compromise the core principles which define our very identity? If so, it is high time to rectify (pun intended) our collective case of cranial-rectal inversion.
On another matter, I want to take exception with the position of Secretary of Defense Bob Gates regarding Don't Ask Don't Tell. The SecDef recently testified before the Senate that he would prefer that DADT be reversed by act of Congress rather than by judicial fiat. The SecDef asserted in his testimony that the ending of DADT by order of a federal court would create more upheaval in the military and be the less preferable option to ending DADT by act of Congress. I think the SecDef is wrong. DADT has been
declared unconstitutional by federal district court judge Virginia Phillips. The case is on appeal. Judge Phillips ruled that DADT violates both the First and Fifth Amendments of the Constitution. (I think it also violates the
Equal Protection Clause.) DADT has been in effect since its enactment by Bill Clinton in 1993. In other words, this unconstitutional law has been the policy of the United States for 17 years and counting. What could be more powerful and definitive than a determination by a United States federal court that the law CANNOT exist because it violates the First and Fifth Amendment rights of gay servicemembers? How is that not more powerful and determinative than an act of Congress? Did not Congress and then-President Clinton get it wrong in the first place 17 years ago?
