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Originally published Sunday, July 21, 2013 at 4:58 AM

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‘The Terror Courts’: rough justice at Guantánamo

In “The Terror Courts,” Wall Street Journal correspondent Jess Bravin recounts the struggles within both the George W. Bush administration and the U.S. Supreme Court over the treatment of detainees at Guantanamo Bay.

Special to The Seattle Times

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What lesson? Obama sure hasn't learned it. He's Bush 3.0. MORE


‘The Terror Courts: Rough Justice at Guantanamo Bay’

by Jess Bravin

Yale University Press, 448 pp., $30

The United States has long prided itself on the strength of its judicial system and its respect for the rights of criminal defendants. For more than 200 years, our justice system has withstood war, economic depression and even foreign invasion. Until Sept. 11, 2001.

In the aftermath of those horrific attacks, both anti-Taliban groups and American troops in Afghanistan rounded up hundreds of detainees. President George W. Bush signed an Executive Order authorizing the establishment of a prison camp at Guantánamo Bay where they would be tried by military commissions. Drafted by conservative ideologues from Vice President Cheney’s staff, the Order established a commission system almost entirely under Presidential control. Worse, the President secretly authorized brutal interrogation techniques. In hearings before the commissions, neither the rules of evidence nor the safeguards applicable in military courts martial would apply. Indeed, hearsay and even confessions produced from torture would be admissible if deemed “reliable.”

In “The Terror Courts,” Jess Bravin vividly recounts the struggles both inside the administration and with the U.S. Supreme Court over the Commissions and its operations. Bravin, a lawyer who covers the U.S. Supreme Court for The Wall Street Journal, provides a fascinating, if depressing, overview of the Bush administration’s approach to the detainees.

Guantánamo was intended to serve as the “legal equivalent of outer space,” where the prisoners would have no recourse to outside lawyers or courts. But military lawyers assigned to represent the detainees immediately challenged the commissions’ jurisdiction. The case ultimately was appealed to the U.S. Supreme Court.

The young Georgetown law professor who argued the case, Neal Katyal, was an odd choice, having never appeared in any significant litigation. He was so nervous that he used a “litigation coach” to calm his nerves by holding hands and practicing before eight stuffed animals before the argument. Despite his inexperience, however, the Supreme Court, in Hamdan v. United States, struck down the effort to try the detainees before commissions.

Congress quickly passed the Military Commissions Act to reauthorize the commissions and to provide at least some due process rights. But the problems were only beginning.

The abuse of the detainees, including waterboarding and brutal interrogation techniques, complicated many of the cases. Marine Lt. Col. Stuart Couch had joined the prosecution team after one of his former squadron buddies, a United Airlines pilot, died on 9/11. But sorting through the files, he was disgusted by the horrific abuse rained down on the detainees, spoiling any chance of fairly trying them.

After several false starts, the administration settled on Salim Hamdan, a driver for Osama bin Laden. Hamdan’s trial, though, hardly turned out as the administration hoped. The commission acquitted Hamdan of “conspiracy” and convicted him instead of the catchall “material support for terrorism” charge. The Commission then rejected the government’s request for a 30-year sentence and, after credit for time served, sentenced Hamdan to only five months. Even that conviction was overturned on appeal.

In the end, of the 778 detainees once held at Guantánamo, only 166 remain, the government quietly conceding that the vast majority could not be convicted. As a nation, we suffered an incalculable loss on 9/11. But the sacrifice of our constitutional principles in reaction did nothing to avenge that loss. Bravin’s thoughtful history teaches a painful lesson. It should be required reading.

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