[AndyJackson]

Sorry, for my clumsy wording and directing it at you, specifically. I am not sure that Kennedy is telling the administration that they had to go further than the CSRTs, so much as in their implementation they perverted the CSRTs. As the decision pointed out, in Eisentrager the defendants had the right of counsel, cross examination, and a neutral tribunal. In this case, in Guantanamo, the detainees, as Kennedy points out, the government was given the presumption of fact (i.e. it isn't neutral), and the detainees were given little right to find and present evidence and were denied counsel (so it wasn't fair).

There is a key issue in this case. Folks try to argue that the detainees are prisoners of war, and furthermore that they were unlawful combatants. Unfortunately, you cannot have it both ways. If they were lawful combatants you have to treat them as POWs under the Geneva convention, and they get to go home some time. If they are illegal combattants, then you have to try them as war criminals, under some form of judicial proceeding, even if it is a properly constituted military tribunal. At least one of the detainees, accused of being a member of Al Qaida denies that and claims that he is being improperly held as he did not do anything. There is always the possibility someone got picked up in the wrong place at the wrong time.

I read elsewhere that one of the things that is slowing up the proceedings setting up tribunals to try these cases is that the government wanted panels without a judge. What were they thinking?

In my view, this is all on Bush and the senior administration officials. The world has been conducting tribunals since the beginning of time, and we know how to do it. Bush1 did it in GW1. We seem determined to pervert any appearance of real justice is these cases. I wonder what the motive is, since it just makes us look bad to the rest of the world.

[sam_paine]

The world has been conducting tribunals since the beginning of time, and we know how to do it.

To that point, one thing has gnawed at me.

When "Regime Change" was directed by Congress for Iraq, since Richard Clarke etc have been on Bush about not using "their anti-terror plan" and for not having the planning right for the post-war insurgency, where was "the plan" for these tribunals back then? Congress declared 'regime change' as a foriegn policy...that's not war, but it's damn close isn't it? My point is, that I have yet to see the inside guy from the Clinton/Bush administrations who "had a plan" for this stuff that would pass muster with Kennedy. You would expect that after the several revisions in Congress and upon getting to this point that some wet-eared jerk would have a book saying "I told you so...you should've used my plan." AFAICT, there was no plan that Bush refused.

OTOH, something else you mention might very well explain where we are:

We seem determined to pervert any appearance of real justice is these cases. I wonder what the motive is, since it just makes us look bad to the rest of the world.

On this fascinating article which outs one of the CIA interregators, I read this:

Inside a 9/11 mastermind's interrogation

Mohammed met his captors at first with cocky defiance, telling one veteran CIA officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer — the experience of his nephew and partner in terrorism, Ramzi Yousef, after Yousef's arrest in 1995.

But the rules had changed, and the tough treatment began shortly after Mohammed was delivered to Poland. By several accounts, he proved especially resistant, chanting from the Koran, doling out innocuous information or offering obvious fabrications. The Times reported last year that the intensity of his treatment — various harsh techniques, including waterboarding, used about 100 times over a period of two weeks — prompted worries that officers might have crossed the boundary into illegal torture.

...Kiriakou, who was not present for the waterboarding but read the resulting intelligence reports, said he had been told that Abu Zubaydah became compliant after 35 seconds of the water treatment. "It was like flipping a switch," Kiriakou said of the shift from resistance to cooperation.

So...perhaps this "we'll let you rot in the dungeon sans lawyers" is intended as a message to would-be neck-choppers?

I mean, westerners were literally losing their heads left and right back in the Daniel Pearl days, weren't they? Now the terrorists are reading in the NYT that that Crazy Bastard Bush has his own thugs, and he's getting high-level terrorists to rat out other terrorists....so you'd better be careful who you trust to help you behead someone.

I mean, maybe America needs to be just as brutal as those guys to stop it?

If that's the case, then it explains the consistent gap between the Bush idea and the Kennedy ideal.