Not letting abject ignorance interfere with opining

A writer at The Atlantic defends Guantanamo military commission based on the most obviously false claims possible. How and why does that happen?

Published January 22, 2009 4:40PM (EST)

There are times when the glaring ignorance one encounters from people who are paid to write about political issues is so severe -- so illustrative of how distorted and misleading our political discourse is -- that it's impossible to ignore even though one would really like to.  Let's just spend a moment marveling at this paragraph written yesterday by The Atlantic's Megan McArdle, the sum total of her commentary on Obama's suspension of military commissions at Guantanamo:

A little confused

Everyone's hailing Obama's decision to suspend all Guantanamo trials for 120 days. But I thought the problem with Guantanamo was the people being held without trial. Khalid Sheikh Muhammed (sic) was being tried by the UCMJ [Uniform Code of Military Justice], which as far as I know, is what you're supposed to use on enemy combatants accused of war crimes. Doesn't this just further prolong the incarceration of anyone who might be innocent?

After she wrote that, Glenn Reynolds -- an actual law professor at the University of Tennessee and a right-wing blogger -- not only linked to it but praised McArdle for -- as he put it, upper-case letters and all -- "ASKING THE UNCOMFORTABLE QUESTIONS."

Despite the fact that it's only 74 words, one could spend hours highlighting the factual inaccuracies in McArdle's "uncomfortable question."  The point isn't that what she said is wrong.  Everyone makes factual errors.  There's nothing wrong with that.  It's that there is no way to think or write any of what she wrote if one has been paying even the slightest attention to these matters, and if one hasn't been, then one shouldn't be writing about them (or linking to and praising such writings).

To begin with, Khalid Sheikh Mohammed is not "being tried by the UCMJ."  And that's not an ancillary or technical issue.  That's the whole point of the military commissions controversy.  They could have tried Guantanamo detainees in civilian courts or in standard courts-martial proceedings governed by the UCMJ.  Instead, they created an entirely new process of "military commissions" that were explicitly not governed by the rules and safeguards of the UCMJ.  

In fact, the Military Commissions Act (.pdf), pursuant to which Guantanamo military commissions are conducted after the Supreme Court's 2006 Hamdan ruling, explicitly states in numerous provisions that various critical safeguards and procedural rights afforded by the UCMJ do not apply to detainees tried at Guantanamo (see e.g., 948b (c) and (d)).  The most notable (though far from only) example is that the Military Commissions Act expressly allows the use of evidence obtained through coercion (see 948r), whereas the UCMJ explicitly bars the use of such evidence (830 Art. 30(d)):

No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

In critical respects, the Guantanamo military commissions and proceedings under the UCMJ are opposites.  That's the whole point of the controversy and always has been.

Beyond those explicit deprivations of key due process rules, there has been one highly publicized event after the next exposing the Guantanamo military commissions as a sham, a travesty, a violation of the most basic precepts of Western justice.  Last year, the chief Guantanamo prosecutor -- an Air Force Colonel -- resigned because he was being pressured to use evidence obtained by torture; because he was told by the DOD that acquittals were impermissible at Guantanamo; and because he was convinced that no fair trial was possible in these commissions given their structure and the pressures being exerted by the administration.  Just two months ago, a high-level Guantanamo prosecutor, a Bronze-star-recipient Lt. Colonel, resigned in protest of the Bush administration's concealment of exculpatory evidence and the abuse sustained by detainees.  Evidence used to justify the detentions has been systematically concealed, lost, and destroyed.

By itself, the use of coerced evidence, which is permitted in Guantanamo military commissions, violates what the U.S. Supreme Court said -- in a 1935 decision invaliding the convictions of African-American defendants obtained with confessions that were beaten out of them by Mississippi sheriffs -- was a core precept of American justice:

In Fisher v. State, 145 Miss. 116, 134, 110 So. 361, 365, the court said: 'Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.'

All of this is what makes the Guantanamo military commissions so disgraceful and why Obama's decision to suspend them (with an eye towards scrapping the system altogether) has prompted such praise.  Have McArdle and Reynolds, as it seems, really remained blissfully unaware of all of this?  

It's one thing to argue that Guantanamo detainees shouldn't be entitled to the protections of UCMJ, or to argue that coerced evidence should be admissible, or to insist that these episodes -- demonstrating how corrupted are the military commissions -- shouldn't be considered compelling.  Those are opinions.

But to say, as McArdle did:  "Gee, what's all the fuss about with these military commissions?  I thought people wanted Guantanamo detainees to have nice trials under the UCMJ like they're having now" is to demonstrate a complete ignorance about what the entire debate is about.  There's just no way to have paid even a tiny amount of attention to what's been going on at Guantanamo and not understand that the controversy is over the rigged and profoundly un-American military commissions themselves, the denial of rights that the UCMJ affords, and the mockery of Western justice they entail.  That is why Obama didn't want his name anywhere near those proceedings and why he immediately suspended them.

One could almost overlook all that if not for the fact that a law professor like Glenn Reynolds then comes along and, in front of his large readership, hails McArdle's ignorance as an example of "asking the uncomfortable questions," and uses his law degree to mislead people into believing that the Guantanamo commissions are being conducted under the UCMJ when they plainly, undeniably are not. 

This is what happens constantly -- ill-motivated and/or ill-informed people spout the most blatant falsehoods, using their venues and credentials to mislead others on these sorts of issues.  I would love to know how many readers of right-wing journals continue to believe that a federal appeals court last week "vindicated" Bush's NSA warrantless spying activities even though that judicial decision (as even favorite GOP Law Professor Orin Kerr acknowledges) had nothing whatsoever to do with the principal controversy of whether a President has the right to violate Congressional statutes when spying on Americans.  It really isn't that hard to refrain from writing about things or making statements about matters that you know absolutely nothing about, or at least to spend a small amount of time finding out before using a platform like The Atlantic or a large blog or a law degree to spout whatever pops into your head.   

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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