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.
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.
--- 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
