Let's think a little more on the substantive effect of the Detainee Trilogy. Phil Carter, of Intel Dump, has an interesting essay on Slate that, I'm afraid, goes a bit too far in accepting the administration's position on a few relevant principles. First, he notes:
[I]f the Guantanamo detainees receive the full right to petition for a writ of habeas corpus in federal court, and that right includes access to counsel to assist with the filing of the petition, then the court may have unwittingly opened a new front in the war on terrorism. First, this will affect interrogations, as discussed abovedetainees who talk to their lawyers will be less likely to spill their guts during interrogations. Second, detainees may come see filing a habeas petition as part of their duty to resist American captivity, just as U.S. soldiers are duty-bound to resist their captors under the Code of Conduct "by all means available." In a worst-case scenario, every single Guantanamo detainee will now seek the writ of habeas corpus, along with every detainee now held by the United States in Iraq or Afghanistan.
"Taking It to the Trenches" (29 Jun 2004). Note that the factual predicate for this position is that a majorityor, at the edge, a large minorityof the personnel actually detained are also actually terrorists. This is a classic bootstrapping situation: we cannot know the answer without a disinterested factual investigation into the complete circumstances of detention, which is precisely what the government opposes. In other words, we're supposed to take the Administration's designation of individuals on faith. The military's own credibility in this regard has not been helped by this Administration's record of overstatement.
Of more interest is the assertion that "detainees who talk to their lawyers will be less likely to spill their guts during interrogations." As a factual and doctrinal matter, this is hardly universally accepted, and where accepted at all it seems not to apply to Islamic interrogees. Breaking someone's resistance the second time is usually easier than breaking it the first time; and if that first breakdown was voluntary, in the form of cooperating with the lawyer, so much the better. Then there's the whole "imminent physical harm" exception to attorney-client privilege; but, of course, nobody likes to discuss that, because it seriously undercuts the rationales for both sides in this little argument.
I cannot let the reference to the Code of Conduct pass. Perhaps this is just different service cultures; but the Air Force treatment of the Code of Conduct is rather different from the Army, if only because the treatment and nature of POWs who were on aircraft was quite a bit different from soldiers captured on the front line in Vietnam. "By all means available" is not unqualified, and most importantly is treated as an aspiration and not a duty. Why? So that an individual who does break is not broken permanently. When that article of the Code was treated as an absolute duty, prisoners believed that they were failures once broken and tended to not resist any further, figuring that they could already be court-martialled for breaking. Don't laugh too quicklythat is exactly what happened to some POWs taken in Korea and the early part of Vietnam. Given that officers fear courts-martial more than do enlisted, it shouldn't really surprise anyone that the officers shot down in aircraft had more fear of this than infantrymen taken in firefights. The irony that the officers were more likely to have information of continuing value is not a pleasant one.
In a somewhat related matterone that, if nothing else, proves that the predicate for habeas corpus actions does in fact occur in the "war" on terrorisma NYT article discusses the efforts of an FBI agent to get a non-terrorist from Nepal released. This is on top of the tyrannical immigration hearing system, and leaves one wondering whether the inscription on the Statue of Liberty retains any meaning.