National Review: Where the Supreme Court is an Afterthought

From Andrew C. McCarthy (well does he deserve that name), this latest paranoia:

The five 9/11 plotters were originally charged in a military commission. Military commissions have been approved by Congress and the courts.

Except, no. The Supreme Court explicitly found military commissions constitutionally deficient, and mandated a parallel track of review including habeas in the federal courts; and, more importantly, the D.C. Circuit found military commissions all too willing to credit unreliable hearsay (see Parhat v. Gates, at p. 28):

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs. [. . .]

Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism.

Combatant Status Review Tribunals (military commissions) relied upon evidence planted by the Chinese government to incriminate Uighurs, whose only real crime was to train in Afghanistan to fight China. It took a federal court, quoting Lewis Carroll, to untie the knot. Whether or not we should try detainees in New York is severable from the question of whether we should try detainees at all; the former is political, but the latter is legal, and has already been answered.


  1. Except the knot is not yet untied – the Uighurs are still in federal custody becaus ethey can’t go back to China, and we don’t want to release them into the U.S. because it might well upset the Chinese (to say nothing of the Neocons).

  2. Last I heard most of them were in Bermuda, for a layover before departing for Points Westward.

  3. Funny how the “liberal” media hasn’t reported that . . . .

  4. McCarthy has shown he doesn’t much for that “reality” thing.

  5. Err, “doesn’t much care.” Sorry!

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