authority might choose to do with them The Administrations lawyering process

Authority might choose to do with them the

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authority might choose to do with them. The Administration's lawyering process cleared the path to horrors at the Abu Ghraib prison and Guantanamo - crimes whose stain upon our national honor is likely to remain, for decades at least, firmly embedded in the world's collective memory, deeply undermining our image and influence abroad. It is understandable that the Administration would want some flexibility in dealing with a threat it rightly regarded as in some ways unprecedented and of very grave magnitude. And yet, to move the detainees so completely beyond the realm of normal legal process was itself a plainly risky strategy in terms of compromising international support, exposing U.S. military personnel to mistreatment, risking the honor of U.S. military culture, and weakening the fabric of international law generally in its protection of both combatants and civilians during wartime. The desire for flexibility was understandable, but not at the cost of all other values.
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On a number of the most important points discussed in the OLC lawyers' memoranda, the courts subsequently held them to be wrong. Contrary to OLC, the Supreme Court held that foreign detainees at Guantanamo who challenged their classification as enemy combatants were entitled to judicial review of the legality of their detention. n13 Contrary to OLC, the Court held that the Geneva Conventions protected the detainees, whether or not they strictly qualified as prisoners of war. n14 Contrary to OLC and Justice Department briefs, the Court held that the military commissions as originally constituted were not sufficiently protective of the detainees' rights to permit their use for war crimes trials. n15 On all of these questions, whether of morality, policy, or law, there were at least serious arguments to be entertained by both sides. The fact that the Administration reached incorrect conclusions is, in itself, only a limited indictment of its lawyering. Even good lawyers make mistakes, and the fact that executive branch lawyers would consistently make mistakes erring on the side of executive authority is not in itself damning. What is damning, however, is that on critical questions - questions going to the core of national honor and identity - executive branch lawyering was not just [*514] wrong, misguided, or ethically insensitive. It was incompetent. It was so sloppy, so one-sided, and at times so laughably unpersuasive that it cannot be defended as ethical lawyering in any context . Tax advice this bad would be malpractice. Government lawyering this bad should be grounds for discharge.
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--- 2nc Circumvention The plan can’t solve --- creates illusion of control that allows national security bureaucracy to flourish Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal, “National Security and Double Government,” , JMP) V. Is Reform Possible? Checks, Smoke, and Mirrors Madison, as noted at the outset,543 believed that a constitution must not only set
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