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October 17, 2006

Comments

I am extremely dismayed (a) at the direction things seem to be going and (b) the inability of otherwise intelligent friends to perceive it. What I would love to see is a link to an unimpeachable commentary on specific quotes from the bill showing how destructive it is. What I have found is mostly just articles about it without actual quotes and explanations. Thank you!

meta: just FYI, the top says "Katherine", but the bottom says "hilzoy".

Geez Katherine, it's like you want to deprive the President of his pets at Gitmo.

The Katherine/hilzoy problem is well-known, cleek. Let's just assume Katherine has lost her password, shall we?

Other than that: agh. Multiple monkeys, multiple footballs.

The Katherine/hilzoy problem is well-known

and yet, i, a constant reader, didn't know.

It's just because you hadn't noticed yet, cleek. Check out Katherine's prior posts, and you'll find that nearly all (if not all) of them have hilzoy's name at the bottom. Check the Maher Arar and Torture and Detention categories off to the right.

Or take my word for it.

Or take my word for it.

I don't know Slarti, have you ever seen them in the same room together?

Ugh: curiously, Katherine and I had never met until about a week ago, when we finally did. CharleyCarp, who was there, can vouch for our being distinct individuals.

CharleyCarp, who was there, can vouch for our being distinct individuals.

Hah! I'm not falling for that, for all I know you're CharleyC too, despite the elaborate biography put up on that law firm's webpage. I'm telling you hilzoy, after the Gay/Dem/Staffer Mafia got to Curt Weldon, I don't trust nobody. They even got Game 5 of the NLCS rained out for Christ's sake.

On a more serious note, walked by the White House about a half hour ago, there was a group of about 50 people on Pennsylvania avenue with a giant yellow sign that read "Torture is Wrong." Good for them.

a group of about 50 people

50 / 300,000,000 = ...

the US is objectively pro-torture

Definitely different people. And I haven't had a password for years.

50 / 300,000,000 = ...

the US is objectively pro-torture

Well, it was raining.

I must know more about this law than 99% of Americans, I know it's a terrible thing and Bush should be ashamed of signing it and Congress should be ashamed of voting for it, that the U.S. standing in the world will be diminished even further, and that it will do nothing to "protect us from the terrorists." And what am I going to do today? I'll work, go home and have dinner, watch some television and then go to bed. Then do the same thing tomorrow.

I've met CharleyCarp also, but never Hilzoy or Katherine. Then again, I could be part of the conspiracy.

@curious:

Not sure if this counts as unimpeachable commentary or not, but the NY Times editorial on the day the bill was passed is a concise, strong statement about the most dangerous aspects of the act.

Several posts at Balkinization in the days leading up to the vote (Sept 24-28) go into more detail, citing specific passages in the bill.

Just before reading this post I'd learned about Mohammed Munaf by reading this diary on Daily Kos, which gives the background to the case for people who may have trouble loading the .pdf in Katherine's link.

Huh, it looks like some of them (the protestors, not the Katherine/hilzoy/CharleyC hydra) got themselves arrested.

They must have moved because they were no where near a White House entrance when I saw them.

Argh! Who are these military officers who think that you should be able to get the death penalty without even revealing the charges? That is freaking ridiculous! It makes me want to know what the charges are right this very second, and if they aren't excellent, the officers should be prosecuted for attempted murder.

Ugh, thanks very much for the original report of the demo and the pointer to the AP story.

The two groups were parts of the same demonstration, organized by the Washington area chapter of the National Religious Coalition Against Torture. I know this from having been forwarded an email alert. Have looked for photos of either part of the demo, no luck so far.

@ curious: if you're still reading along, Jack Balkin has a response to the Open Society Institute's odd op-ed today in the Washington Post on the detainee torture/tribunal law (the Military Commissions Act). His post should be useful in helping to educate others about the most pernicious aspects of the law.

Munaf isn't dead, just sentenced to death...but he's got a habeas case in US court.

oops, missed the "attempted" in Sebastian's post. Carry on.

From the pretty good NYT story:

Outside the White House, protesters, some dressed in orange jumpsuits of the sort worn by detainees at Guantánamo Bay, Cuba, gathered around a makeshift black coffin painted with the words “The Corpse of Habeas Corpus.” Police arrested several of the protesters when they refused to move away from the White House gates.

No photos of that on the web posting, but one can hope... So far, this Reuters pic is the only photo evidence of the demos today.


Nell - Yeah, I saw a couple of the orange jump suits. Since you seem to be (at least one step removed) in the know, any chance you can find out if they really moved over to the White House gate before being arrested? As I stated above, they were in the middle of Penn Ave, far removed from any gate.

Hmm...this AP report is more ambiguous on whether they were near the gates:

A coalition of religious groups staged a protest against the bill outside the White House, shouting "Bush is the terrorist" and "Torture is a crime." About 15 of the protesters, standing in a light rain, refused orders to move. Police arrested them one by one.

Thanks for the tips Nell; very much appreciated. I will be continuing to read this thread if anyone else has any pointers. I am especially interested in constitutional interpretations from a legal point of view, some of which I've found on Jurist. I can't actually believe it isn't obvious (to anyone with any sense) on the face of it why this bill is so terrible. I was palpably shocked when it passed and that shock has only slightly subsided. I think it's time to look outside the Democratic Party for remedies to this tyranny - where, I'm not sure, but this goes way beyond considerations of 'the lesser of two evils' - the idea of giving any support to any political party that supports torture is simply repugnant. [end screed]...

I hear you, curious. Am very, very glad I'm not an Ohio or Michigan voter; I truly couldn't bring myself to vote for Brown or Stabenow after their votes for this bill.

Well, curious, the better step might be to get rid of the party that actually sponsors this kind of thing. I don't know why anyone was shocked -- the President needed the bill, and his party commands a majority in both houses.

There has been some briefing on the Suspension question before -- whether or not there will be more is currently an open question. The government filed a Rule 28 letter in Al Odah today suggesting that the Circuit could decide the issues raised by the MCA without any additional briefing. Its also filed a motion in Hamdan, which is back in the district court, asking for a briefing schedule. Nothing in either of my cases today, but tomorrow is another day.

I would say the remedy lies outside the Democratic party in a way, but that doesn't mean you don't vote. A Democratic victory is necessary but not sufficient for fixing this.

I do wish that the Clintons would shut up about torture warrants though.

http://www.iht.com/articles/ap/2006/10/14/europe/EU_GEN_Romania_Iraq_Death_Sentence.php>Romania not informed of Iraq trial of suspect in kidnapping of Romanian journalists. Linked because it no longer shows up in a http://news.google.com/news?hl=en&q=%22Mohammed+Munaf%22>Google search for the steadily shrinking list of articles on http://natseclaw.typepad.com/natseclaw/files/Munaf.v.Harvey.Emergency.Declaration.pdf>Munaf.

The IHT link is (at this time at least) entirely functional, but it and several others are no longer searchable via Google. That search returns 15 stories plus 3 related, at the time of this comment - down from 17+ yesterday and 21+ a little over a day ago when Katherine created the post. Any help explaining that would be appreciated.

The http://www.news.com.au/heraldsun/story/0,21985,20586285-663,00.html>Herald Sun sourced the Munaf section of its story on the 15th to the Washington Post (whose original also doesn't appear now via Google searches, if it is still up). That link doesn't fully load for me, but view source yields the text of their brisk summary

A US citizen of Iraqi origin accused of helping to kidnap three Romanian journalists has been sentenced to death in Iraq.
Lawyers for Mohammad Munaf were asking a federal judge in Washington to stop the US military from handing him over to Baghdad, the Washington Post said. Munaf, 53, was arrested on May 23, 2005, in a military raid to rescue the trio, kidnapped nearly two months before. Iraqi authorities allege Munaf, the journalists' guide and translator, posed as a victim but actually led them into a trap to gain a ransom.
Munaf gained US citizenship in 2000, and a year later moved to Romania with his wife and three children. The Post said military officials had sworn Munaf had confessed to helping arrange the kidnapping.
Also appreciated, of course, would be the names attached to the two uniforms in the stories. And likely Courts-Martial.

CMatt, you might try spelling it "Mohammad Munaf".

CharleyCarp: I don't know why anyone was shocked -- the President needed the bill, and his party commands a majority in both houses.

I was shocked. I was not surprised. /pedantry.

CharleyCarp, I was shocked because this bill seemingly enshrines the right of the executive branch to commit torture. Also find it shocking that people might have been afraid to vote against it/filibuster for political reasons. What if there was a bill with broad public support in favor of genocide? Wouldn't it be shocking that so many congresspeople would go along with it for political reasons? Torture isn't genocide, but I find it similarly repellent - on a smaller scale. I'm utterly dismayed that the Democrats had an opportunity to create the distinction between themselves and the Republicans that they do not support torture. What could be a better place to draw the line? Yes, I'm still shocked, and also disgusted.

My views on this subject are known, and undoubtedly tiresome, to the other commenters, curious. Plenty of Democrats voted against the bill. A very solid majority. Very few Republicans did. If the only way you can see a difference between parties is when their members are unanimous, you're just going to end up buying the 'no real difference' trope that put Bush in the WH.

On your genocide question, I wouldn't be shocked to see a great many representatives agree with 75% of their constituents (if that's how popular your hypothetical bill was). Where do you think these people come from? How do you think they get into office? Why/How would they be immune to whatever it is that led such a proposal to be popular?

Public support for torture or genocide can still be shocking even when it is not surprising. For example: I won't be surprised when Republicans take control of both Houses in November amid reports of electoral malfeasance, but I will be shocked. Again. One can continue to be shocked long after the surprise has worn off: indeed, I think it a sign of healthy moral values that people are still shocked, if not surprised.

Jes, I too am shocked by what the public will support. But not by their representatives' being of and like the public.

I guess I'm just surprised how many Democrats there are who would go along with (apparently) anything, no matter how repellant, to further their political careers. This is assuming they don't in their heart of hearts believe it is a good idea for the Bush administration to have a pass on torture.

Also, I have some idea that the role of a congressperson is not to represent his constituency completely and directly, but to serve as something of a buffer between public opinion and policy. Otherwise, why not have a purely referendum-based system and just have the public vote on everything? (shudder).

1. The bill had provisions other than those related directly to torture. For example, I imagine that the NJ senators were more interested in getting a trial going for KSM than in whether or not future captives will be tortured. They didn't have the votes to get a bill that did only what they wanted, and not what they didn't want, so they had to make a choice. It's not the one I would have made -- or that either of my senators or my congressman did make -- but demonizing them for it, when the greater evils are running around loose, and planning still worse in the future, doesn't strike me as particularly useful.

2. I'm not saying that the rep has to slavishly follow the constituents, but that he/she is made of the same material. An argument they like, he/she's likely to like as well. For the same reasons.

curious: I'd also add that it's shocking, but in a different way, how badly informed a lot of the discussion of this bill was. Some of it was due to the also shocking small amount of time between when the final bill became available and when it was voted on, and some to the fact that the bill was in certain respects confusingly written; but if I, a non-lawyer, could read it and get some of the main problems, I would hope my elected representatives could do the same. Or at least hire someone who could do so and then brief them well.

But then, I'd also hope that my elected representatives would know the difference between Shi'a and Sunni Muslims.

Nothing in either of my cases today, but tomorrow is another day.

So it is. Half an hour ago the government filed a notice in every single one of the habeas cases notifying the judge of the MCA, and the relevant provisions. No mention of the constitutional arguments. In a footnote, the government noted that prisoners in the Al Odah appeal had asked for supplemental briefing.

Half an hour ago the government filed a notice in every single one of the habeas cases notifying the judge of the MCA, and the relevant provisions.

[Profanity deleted by posting rules], they didn't waste any [profanity deleted by posting rules] time, did they?

Charley, if you have time and if the kittenmob allow, it would be great to have a front-page article from you on the effects of the MCA on the cases you've been looking at, in as much detail as you are able to make public.

Charley: I second Jes' suggestion. If you can post something consistent with client confidentiality, classified-ness of stuff, and any other obligations you have, and if you have time, it would be great.

Thirded.

(N+1)ed

Yes, please.

Me too.

No pressure, of course.

Marty Lederman has written nicely from the OLC experiential perspective, as has JB; and, occasionally some principals here participate at balkinization.

ML's excerpt of a few verbatim pages of Snow's press conference on MCA, I thought, also was revealing. Evidently the strategy was to prescind from development of a formal signing statement and instead write all of the actual specifics in an executive order. Snow did his best to dodge all substantive replies to the questions, basically saying the process of writing the implementation is ongoing. Note to 'curious'; if you explore the balkin site, there is ample material there. I agree with hilzoy that part of the president's congressional strategy, and, doubtless, by pre-arrangement with Hastert, Frist, was to hustle the bill through without affording time for senatorial research prior to discussion on the floor.

Reading Katherine's linked NYTimes article about Ginco I thought how similar to Chadha it was, though he is young.

I can understand CCarp's interpretation of the NJ senators' both having voted for the MCA law. When I lived in north NJ the WTC had not existed yet, but there was a colorful electronics gear neighborhood on that site (where WTC was to be built) where one could poke thru components and build radios and "analog computers" from the items found. On a clear day the NY skyline was visible from some of the hills in our town; and so would the smouldering WTC have been. I think Lieberman had the same sentiment in his vote for MCA, as both those states are commuter havens for NYC.

There's not much more to tell than in a comment I put here just as the MCA passed. (I don't have time to look it up right now, sorry). The Circuit has just granted the request in Al Odah / Boumedienne for supplemental briefing: prisoners open on November 1, government responds on November 13, prisoners reply November 20. Members of the ObWi Bar Ass'n will tell you that this is some pretty brisk play at the Circuit level.

I'll write a little more tonight -- gotta go think about http://www.africare.org/how/dinner/index.html>Africa for now . . .

If that's a "glittering annual fixture", can we think of charleyCarp as our little sequin?

Actually, I won't have time to read any responses for a while, since I have to go to the far less glittering Midtown Baltimore Town Hall Meeting ;)

"Members of the ObWi Bar Ass'n will tell you that this is some pretty brisk play at the Circuit level."

Yeah, I'd say so. (I need a nap.)

Well this scares the bejeebus out of me. Paging bob mcmanus.

CharleyC, when you get done hanging with Bill, care to comment?

hilzoy - I'll be interested to see how your comment on NK at Bizarro World pans out.

ScotusBlog also has ongoing coverage on this issue. As to the quickness, see expletives deleted, is this really a bad thing? Better than delay and doing it months down the road.

CharleyCarp, it's my sense that anyone who votes for a bill that legitimizes any administration to employ torture has demonized themselves. This goes well beyond any considerations of realpolitik I think. Saying the Republicans are worse, to me, is like saying "Well, we may commit occasional war crimes, but our enemies are even worse!" I don't say there's no real difference between the parties, but I do say that the Democratic Party didn't choose to make much of a stand against this bill, and anyone who voted for it is possibly complicit in war crimes. Why wouldn't the party take opportunities like this to make a big deal of having actual humanist values? And thus to differentiate themselves from the Republicans? I don't know who said it but I heard a line I liked: "Give someone a choice between a Republican and a Republican, and they'll vote for the Republican every time."

John Lopreti, thanks for the pointer to Balkinization; this is exactly the kind of stuff I'm looking for.

In other news: Helicopters insufficiently black, CIA says.

Sorry guys -- I meant to write something on the trainride last night, but missed the last train (can you believe there's no northbound between 10 pm and 3 am?) and had to drive.

And now I have to be in a conference all day.

More later.

In answer to Joe, yes it is good that it's happening fast. We don't know how long it's going to take for the Circuit to rule against us, but I don't expect a ruling from them in 2006.

Curiuos, surely you know better than to use the Democratic Party as the subject of a sentence. Followed by a verb other than to be. Especially when talking about legislative action. Individuals take stands and make statements. And stand for election. On the question of whether the strong majority of Democratic officeholders who opposed the bill should have tried to shame their fellows who didn't think they could oppose it, or the wisdom of allowing the midterms to get nationalized around 9/11 rather than Iraq (and corruption), I think we're just going to have to agree to disagree.

curious,

Trust me on this one: never mention the Democratic Party in conjunction with any phrase that might be considered negative. Save yourself the hassle.

Trust me on this one: never mention the Democratic Party in conjunction with any phrase that might be considered negative. Save yourself the hassle.

???

Yes, Andrew, nobody here but us mindless hacks.

I neither said nor implied that, KC, although in your case I might be hard-pressed to refute it.

@John Lopresti: I'm not as impressed with that line of defense for the NJ Senators' votes. New York's delegation seemed to be able to pull themselves together to do the right thing. As for Lieberman, he was just voting with his real party.

If, in the absence of this "law" that legalizes tyranny, it would be impossible to try Khaled Sheikh Mohammed and others, then good politics and good policy both call for pinning the responsibility for that right where it belongs: on Bush, Cheney, Rumsfeld, Ashcroft, and their torture- and star chamber-facilitating functionaries. What, Bush is too popular to do that?

@Andrew: You know what's not usually funny? Whining.

Well, I'm having trouble interpreting your 7:58 as anything other than an insult to the ObWi commentariat, but I guess I'll have to put that down to my mindlessness. Perhaps Ugh is mindless as well, though his admirable concision means I can't assume his puzzlement aligns with mine.

I'll endeavor to ignore future perceived insults.

Nell,

Thanks for the tip. As always, they're appreciated.

KC,

That would be wise, as no insult was intended. My point was simply that, with less than three weeks to go before the election, emotions are running a bit high and, as the ObWi community does skew Democratic, comments perceived as attacking the Democrats may raise tempers unnecessarily. That is neither mindless nor hackish (hackite? hackoid?), it's just normal human behavior. Although, in fairness, I should have said avoid saying such things over the next few weeks rather than the use of 'never.'

Andrew, I responded to your advice to curious for several reasons: One is that you do seem to be playing the martyr a bit. Maybe you're entitled; I haven't read all of the threads where Dem commenters have unloaded on you.

But, while you're certainly entitled to evaluate for yourself the utility of criticizing Dems, your advising curious on the matter misses the mark in a couple of important ways:

Curious is to all appearances somewhat new to the site, so your remark has the potential to be unnecessarily discouraging.

And curious' criticisms of Democrats, unlike yours, come from "within", or at least, from the left. This thread contains at least one other poster doing so (me), with perfectly civil defense of Dems from CharleyCarp and John Lopresti. So, given that things had not heated up on this thread in response to curious' comments, your remark seemed to come out of nowhere, and to be directed at unseen opponents.

@curious: Just FYI, there was a spirited hashing-out here of perspectives on how the Democrats handled / should have handled the torture-tribunal bill during the period it was being debated and voted on. The most relevant thread is here.

Another is from a few days earlier, when there was still a sliver of hope -- though you might want to skip a couple of the long digressions on posting rules.

And one more on the Dems-torture-habeas front here.

Andrew: I neither said nor implied that, KC, although in your case I might be hard-pressed to refute it.

KCinDC: Well, I'm having trouble interpreting your 7:58 as anything other than an insult to the ObWi commentariat, but I guess I'll have to put that down to my mindlessness. Perhaps Ugh is mindless as well, though his admirable concision means I can't assume his puzzlement aligns with mine.

I'll just say that I too was puzzled by Andrew's comment as it seemed out of character (though maybe close to a few comments he's made at the end of a long comment thread with Jes) and it reads, absent the name attached to it, like an insult. However, it seemed unlikely to me that he would say such a thing and mean it as a gross insult, especially after so recently asking if he should stay, so I thought I'd just say "???" (though I will admit that I almost threw in an "WTF" too).

Anyway, I think we could all (me included) stand to see a bit more charity behind the motives and comments of others and, if not, at least make a stab at asking for clarification.

I think it's important to emphasize, too, that Andrew's snark completely missed the point of CharleyCarp's response to curious, which was not that it is wrong to criticize "the Democratic Party," but that, in re the torture bill, "the Democratic Party" neither voted nor made decisions about what to do. Individual Democrats did, and they can -- and should -- be criticized or praised on that basis.

Reading comprehension: It isn't just a good idea. It's the law.

(though I will admit that I almost threw in an "WTF" too).

My reaction as well, though thankfully I didn't have the time to post it.

Thanks Phil, and I was also criticizing the Democratic Party, as an organization capable of engaging in any activity whatsoever. That's what I mean when I say you can't use it as the subject of a sentence. Hyperbole, but only barely (and nothing but a lesser way of expressing Will Rogers' point).

OK, now that I'm done with my little road trip, I'll resume play-by-play on the MCA litigation.

As noted, the main MCA litigation action, as an initial matter, will be before the D.C. Circuit in the Al Odah / Boumedienne case. That's an appeal from two district court decisions from January 2005: in Boumedienne, Judge Leon dismissed the petitions finding no rights under any law to be vindicated, while in Al Odah, Judge Green denied the government's motion to dismiss some other petitions finding that the CSRTs violated the constitutional guarantee of due process. (Members of the OWBA will understand that the first appeal was of right, and the second on certification. they are consolidated). The case was argued in September 2005, but after the DTA was passed, the parties filed supplemental briefing on the impact of the DTA, and a second argument was heard in March 2006. As I noted above in this thread, the panel has agreed to additional briefing on the MCA, which will be completed by the end of November. I'm guessing that they won't decide whether to have an additional hearing until after the briefs are in.

The panel is made up of Judges Randolph, Sentelle, and Rogers. Judge Randolph wrote the now-reversed opinions in Rasul and Hamdan, and cannot be considered a lucky draw from our perspective. Google Judge Sentelle and Ken Starr if you're in the mood for a blast from the past.

In the meantime, the government has also filed a notice in each of the 190 or so pending habeas cases at the district court (footnotes in original):

NOTICE OF MILITARY COMMISSIONS ACT OF 2006

Respondents hereby give notice that on October 17, 2006, the President signed into law the Military Commissions Act of 2006, Pub. L. No. 109-___ (copy attached) ("MCA"). The MCA, among other things, amends 28 U.S.C. § 2241 to provide that "no court, justice, or judge shall have jurisdiction" to consider either (1) habeas petitions "filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination," or (2) "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States" as an enemy combatant, except as provided in section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (10 U.S.C. § 801 note).* See MCA § 7(a) (located on pages 36-37 of attachment). Further, the new amendment to § 2241 takes effect on the date of enactment and applies specifically "to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." Id. § 7(b) (emphasis added).**

___________________

* Section 1005(e)(2) of the Detainee Treatment Act provides that the United States Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant," and it further specifies the scope and intensiveness of that review. See Pub. L. No. 109-148, § 1005(e)(2). Similarly, § 1005(e)(3) of the Detainee Treatment Act, as amended by the MCA, provides that the Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the validity of any final decision rendered by a military commission." Id. § 1005(e)(3).

** Counsel for detainees in certain of the pending Guantanamo detainee appeals, Boumediene v. Bush, No. 05-5062 (D.C. Cir.), and Al Odah v. United States, No. 05-5064 (D.C. Cir.), have requested the Court of Appeals to permit supplemental briefing regarding the effect of the MCA.


Obviously, not particularly argumentative, but enough to flag the issue. One would expect most district judges to sit tight and wait for the Circuit to rule. They might not all do so, however. We'd filed a motion for leave to take some discovery in one of our cases (I'm in 2 of 190+) and in our reply argued that the MCA is unconstitutional. Our judge can rule if he wants, or can sit and wait for the circuit.

Besides our motion for discovery, there are various ancillary motions out there dealing with access to medical records, sanctions for government misconduct, and the like. The government has been arguing since the DTA that the district courts lack jurisdiction to do anything, so far without getting much traction. (On the other hand, the courts have been very reluctant to interfere with the prison -- ancillary motions have only been granted in pretty extreme circumstances).

After the Circuit rules, the loser there can file a petition for cert with the Supreme Court. I would imagine the petitions will be filed in fairly short order after the ruling and, if it's our side petitioning, there'll be a request to speed the whole thing up.

So what happens if we win? The prisoners get judicial review of the basis of their detention. And if (but only if) the detention is unlawful, they presumably get an order directing their release. What happens if the government wins? One suggestion is that all the pending cases get transferred to the Circuit for DTA review. That is, so the Circuit can determine whether the CSRT rules were followed. On DTA review, the Circuit seems precluded from determining whether the CSRT rules then in effect violated the Constitution, the Geneva Conventions, the law of war, or the common law. If this is where we end up, there will still be ancillary issuesw, because full CSRT records haven't been made available, and other matters.

We do not believe that the Circuit can or should consider evidence obtained under torture for any purpose, including DTA review, and so this will have to get hashed out as well.

Questions?

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