INTEL DUMP - DoD lawyer files suit to challenge tribunals
Neil Lewis reports in tomorrow's NY Times that one of the JAG officers assigned to defend a Gitmo detainee has filed a lawsuit in federal court challenging the Constitutionality of the military tribunal order under which his client will be tried. The NYT story is essentially a follow-up to this report by Jess Bravin in Wednesday's Wall Street Journal. (subscription required) (Thanks to How Appealing for the heads up, which also provides a link to the complaint filed in this case. How Appealing really is better and faster than the AP for legal news.)
The suit asserts that Mr. Hamdan, a Yemeni, was never involved with Al Qaeda or with any military action against American forces in Afghanistan. He is described as a Muslim pilgrim who went to Afghanistan on the way to Tajikistan. Failing to get there, the papers say, he took a job as a driver on Osama bin Laden's Afgan farm and later became a driver for Mr. bin Laden himself.
The tribunal system set up by the administration does not provide for review in any civilian courts. Appeals may be taken only up the military chain of command.
The new suit, before Judge Robert S. Lasnik, asserts that the Constitution guarantees civilian court review of the military justice system. Military officials have contended that the prisoners are unlawful enemy combatants and as such are not entitled to the protections of American law or international treaties.
Analysis: This is a great case of zealous advocacy by a military lawyer. The Secretary of Defense and his staff support the tribunals, and this officer's chain of command runs straight to the SecDef. Yet, he's willing to set aside pure careerism in order to challenge the validity of the White House's tribunal order in federal civilian court. Of course, it can be argued that he may be enhancing his career by taking such a zealous stand. You see, JAG officers may ultimately work for the SecDef, but their respective services (Army, Navy, Air Force, Marines) control their careers and promotions for the most part. The service JAGs don't really like the tribunals, so he's likely to be taken care of by his own service chain of command. Nonetheless, I still think it takes major league cojones (or chutzpah) to fire a direct shot like this at the SecDef. You don't see that many military officers, regardless of the rightness of their views, willing to fight publicly with the Pentagon like this.
The cynical side of me wants to say that the SecDef and his staff planned this all along -- that they want zealous JAG officers to fight the tribunals in court because it will lend the tribunals a veneer of legitimacy and respectability. Perhaps. But what's the practical difference between allowing such dissent for spin purposes, and actually establishing a process which includes some modicum of fairness and due process. At some point, the lines become blurred. And at the end of the day, I'm pretty confident that these JAGs will execute their professional duties by fighting for their clients to the best of their ability. |
