If you want to read about Gen. Miller, read Chaplain James Yee’s For God and Country: Faith and Patriotism Under Fire.

Sabin Willett’s Requiem for a Remedy, [in case you hadn’t read it].

I have read it, harpie, and I won’t soon forget it. I highly recommend that everyone read those powerful words written by Uighur habeas attorney Sabin Willett, and then take the time to ponder the significance of what they convey. (Particularly Supreme Court Justices like Stephen Breyer and Anthony Kennedy…) And thank you, harpie, for highlighting Willett’s Great Writ of Habeas Corpus “Requiem” – and for all the other helpful, pertinent links you provide readers here and at Glenn’s site.

One of the values of the David Remes note I quoted @ 10 is that Remes is providing his own experienced Guantanamo habeas-attorney assessment – “Finally, the Supreme Court has let stand the D.C. Circuit’s Kiyemba ruling that the courts have no power to compel transfers even of detainees who win their habeas cases“ – of the wider import of the Supreme Court’s refusal a week ago to review the D.C. Circuit’s Kiyemba decision(s). (Kiyemba is nominally the “Uighur” case, but obviously has consequences far beyond the Uighurs.) And that separate analysis by Remes bears out what Sabin Willett himself said in longer form a few days earlier in the linked “Requiem.”

So maybe, just maybe, our media and Congress ought to finally start paying attention to the staggering implications of what these “protective order”-gagged detainee habeas attorneys are trying to tell us??

One thing that everyone covering the Guantanamo Files story ought to be getting straight by now, at minimum, is that the foreign prisoners at Guantanamo are all there under color of the law of war, and have been from day one. Thus, everyone at Guantanamo has been decreed by the President to be an “enemy combatant” in an ongoing armed conflict with the United States by default (see this comment and its links for more). Try to square that fact with the “facts” recited in the fairy tale “intelligence” assessments released by WikiLeaks – especially in light of the McClatchy reporting, highlighted by W.O. @ 1, revealing that, of 779 non-uniformed “enemy combatants,” “More than two-thirds of the men and boys at Guantanamo were not captured by U.S. forces.”

The inevitable confusion of such “second-hand” capture – which cries out for fair hearings to ascertain the genuine status of the non-uniformed captives, as mandated by the law of war/Third Geneva Convention, Article 5, and existing Army regulation – was then paired with essentially no due process at all for Guantanamo captives, until Boumediene in 2008 pretended to impose a version of due process, which has since been designed and implemented by the D.C. District (trial) courts, and overseen (that is, mostly reversed) by the D.C. Circuit (appellate) court. [The military’s one-sided “CSRTs” (2004-2005 Combatant Status Review Tribunals) failed to provide the minimum due process required of mandated Article 5-compliant status hearings, according to rulings by military judges in 2007, and a federal district judge in 2004. The Supreme Court to date has ducked the issue of the government’s ongoing Article 5 violations.]

Thus, in a complete inversion of the law of war, Guantanamo’s “enemy combatants” have all been decreed by default not to be “Prisoners of War” (making them ineligible for attendant POW treatment standards and UCMJ-governed court-martial for the commission of any alleged war crimes). Furthermore, until Boumediene habeas hearings began to try to reassert some due process in 2008, Guantanamo detainees were deprived of any due process by “competent tribunal” to accurately ascertain their status in the armed conflict, if any – which is required before default POW status may lawfully be stripped from them. [What’s the government afraid of learning in fair Article 5 hearings??]

Media accounts (and accounts by human rights organizations, etc.) that fail to understand and note these basic facts only help to disguise the ongoing, indefensible actions of our government at Guantanamo.

In other words, the government itself is not claiming that Guantanamo detainees – aside, to date, from the six convicted, and one charged (and, I suppose, formerly charged), “war criminals” ever brought before a Military Commission – have broken the law. The “unlawful enemy combatant” wordgames are about denying the captives the rights of “privileged combatants” (immunity from violations of the domestic law in the jurisdiction where they’re found fighting, as well as POW status and privileges, etc.) without first providing due process to reach that “unprivileged” combatant conclusion – due process that’s required by the law of war (for very good reason, as we can certainly see now). [The lack of uniform-wearing, on its own, is not a war crime.]

So by the government’s own rationale for the president’s private prison at Guantanamo, there’s nothing to charge the vast majority of detainees with, under the law of war on whose authority their detention is based, as earlofhuntingdon rightly notes @ 5. And what testing there is of the government’s unlawful default “enemy combatant” claims is taking place in habeas corpus proceedings (to determine, in federal court proceedings often closed to the public, whether a detainee is lawfully held under the law of war), not in criminal or Commission prosecutions under, respectively, domestic law or the law of war.

Reporting ought to make that clear, so that we can focus on the government’s real legal claim – cited in every habeas corpus case in federal court – for the continued imprisonment of these men: that they are proven “enemy combatants” in an “armed conflict” against us, who will return to the Congressionally-authorized armed conflict battlefield (not merely to the writing of op-eds against us, or to hating us or otherwise behaving in an “unfriendly” manner) if released. Which, in turn, would allow us to focus on the laughingstock of a standard by which the D.C. Circuit has decreed the government may “prove” – while withholding POW treatment from these men – that a detainee was, pre-capture, such an enemy combatant in an armed conflict against us (quoting from Willett’s Requiem, which cites some of the cases that have eviscerated the common-sense standards that the lower district court judges hearing the evidence had established since Boumediene):

Not that too many — or should I say, any — men can hold a win in the D.C. Circuit these days. The narrow Article I idea of the precise military enemy identified in a war authorization has been broadened (in utterly unnecessary dictum) to the mythic (Bihani). Any combination of circumstances will be reshuffled to “condition” the probability (Adahi), candor compels at least one judge to admit that the real detention standard is, “He might be — you never know.” (Esmail). A district judge would be daft to essay what used to be her most sacred task — assessing witness credibility. She’ll either be trumped by a statistician (Adahi), or pronounced a gull for $4 bills (Esmail). In the rush to sweep the field of detainee cases, not even the honor of U.S. servicemen was safe. To kill off one case, the D.C. Circuit ruled that it is foreseeable that our troops will torture a prisoner (Rasul).

As Willett indicates, the D.C. Circuit – a handful of rabid partisans in love with an authoritarian president, who long ago gave up any pretension to judicial temperament or faithful allegiance to the Constitution – have made rulings over the last year that go so far as to decree that pre-9/11 (and thus pre-2001-AUMF) actions by “enemy combatant” detainees were part of an “armed conflict” against the United States, and that being “part of” an ill-defined “associated force” makes one an “enemy combatant” in an “armed conflict” against the U.S., even where no hostile action against us was demonstrated. The definition of “part of” has been reduced to meaninglessness by the D.C. Circuit – sleeping for a night in the same “guesthouse” as someone else “suspected” of being “part of” some “associated group,” or because “intelligence” (those fairy tales, again) was cobbled together in a mathematical probability “mosaic” that district judges are ordered to construct to give the government’s classified assertions the benefit of every doubt, etc., etc.

These latter realities are the realities that the “protective order”-gagged detainee attorneys – a dedicated, unheralded pro bono group of American civilian and military attorneys that one of the D.C. Circuit’s most hateful members (Silberman) recently mocked as “the detainee bar” in a political rant disguised as judicial concurrence – are dealing with on a daily basis. But they’re realities that rarely make it into the reporting or the commentary about Guantanamo, due in large part to the government muzzles that detainee habeas attorneys are forced to wear to continue to represent (not “to defend,” because their clients are accused, not of committing crimes, but of being the opponents on the other side of the “war” America is or was fighting against the perpetrators of 9/11) Guantanamo detainees:

For me this is particularly frustrating as I have discovered more lies by the government both to the court and to me….and to bring them to the court’s attention I must fly to DC and file the documents from the “secret place.”

So, for a few thousand dollars I can fly to DC, prepare the document and then file it as a classified document despite the fact that the big dark classified secrets are available in several different languages all over the f’in internet.

– Chicago-based detainee attorney H.C. Gorman, 4/26/2011

Scott Shane at The New York Times should thus be commended for touching on this situation in his reporting yesterday, which was good to see:

Joseph Margulies, a Northwestern law professor who represents Abu Zubaydah, the detainee accused of being a terrorist facilitator who was waterboarded by the Central Intelligence Agency, said he could not comment on the newly disclosed assessment of his client, which is posted on The Times Web site.

“Everyone else can talk about it,” Mr. Margulies said. “I can’t talk about it.”

[…]

But the prohibition for Guantánamo lawyers has serious implications, said Mr. Margulies, who wrote a book on Guantánamo and has represented five prisoners there. Decisions about who gets released have been influenced by politics and public pressure as much as by legal standards, he said.

“It’s important to be able to use these documents to shape and inform the discussion in the public square,” he said. If a leaked risk assessment contains clearly disproved accusations about a prisoner, a lawyer should be able to publicly refute it, he said.

That’s certainly a step up from Monday’s treatment by the New York Times of the claimed 2006 Guantanamo suicide victims, which Scott Horton – who long ago did his homework on that subject – rightly criticized:

Strikingly, the Times does not refer to Al Zahrani’s transfer clearance, nor to other evidence that contradicts or undermines the suicide hypothesis. This evidence includes the on-the-record statements of four Army perimeter guards on duty that evening, the gross irregularities surrounding the pathological examination of Al Zahrani, the fact that his father firmly stated that the suicide note found on him was a forgery, and the credulity-straining official narrative of how the alleged suicides occurred. The Times also failed to speak with defense lawyers, any freed detainees or their family members, or alumni of the Gitmo intelligence community.

The government has made the job of everyone trying to pursue the truth about Guantanamo and its prisoners as difficult as possible, but that’s no reason for Americans to continue to tolerate the despicable ongoing demonization of its inmates by our elected officials, who mention Guantanamo only to demagogue its “alien” human captives to their hearts’ content – a disgraceful dehumanizing of foreigners that our federal “representatives” have enthusiastically indulged in for nine long years now without paying a personal price.