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Tomgram: Karen Greenberg, How Guantanamo Set the Stage for the Kavanaugh Hearings

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This article originally appeared at TomDispatch.com. To receive TomDispatch in your inbox three times a week, click here.

You want the nitty-gritty on the Bermuda Triangle of injustice that the U.S. created at the CIA's global black sites and its detention center in Guanta'namo, Cuba? Well, here's a true story about an American National Guardsman at Gitmo who was only pretending to be a recalcitrant prisoner being "extracted" from a cell for training purposes and was beaten almost senseless. As I wrote long ago, this "happened to 35 year-old 'model soldier' Sean Baker, who had been in Gulf War I and signed on again immediately after the World Trade Center went down. His unit was assigned to Guanta'namo and he volunteered to be just such a 'prisoner,' donning the requisite orange uniform on January 24, 2003. As a result of his 'extraction' and brutal beating, he was left experiencing regular epileptic-style seizures ten to twelve times a day. (And remember the Immediate Reaction Force team of MPs that seized him, on finally realizing that he wasn't a genuine prisoner, broke off their assault before finishing the job.)" So just imagine what was done to actual detainees there and in those black sites.

TomDispatch regular Karen Greenberg, director of the Center on National Security at Fordham Law and author of The Least Worst Place: Guanta'namo's First 100 Days, has written about that grim prison and American torture techniques there and elsewhere for TomDispatch since 2005. Recently, she's begun tracking the ways in which the Guanta'namo mentality has left that island and headed for the mainland. However unattended, this is a development that should have been expected and is ominous. Of course, any country that creates a system of injustice offshore of its system of justice should expect the former to infect the latter sooner or later. Greenberg recently followed that Gitmo mentality to the U.S.-Mexico border where undocumented immigrant children were turned into a set of junior "detainees" and given a dose of offshore treatment. Today, she follows it into the heart of Washington and the Kavanaugh hearings. However, in a country that elected a president who put his stamp of approval on the idea of torturing prisoners ("I would bring back waterboarding, and I'd bring back a hell of a lot worse than waterboarding...") and possibly slaughtering their relatives ("The other thing with the terrorists is you have to take out their families..."), no one should be surprised to find aspects of the Guanta'namo mentality taking a bow, as Greenberg suggests today, in the nation's capital during the recent Kavanaugh imbroglio. Tom

Justice Derailed
Brett Kavanaugh and the Echoes of Gitmo
By Karen J. Greenberg

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Amid the emotional hubbub over the predictable confirmation of Brett Kavanaugh, there has been a largely overlooked casualty: the American judiciary. It's not the end result alone -- his addition to the highest bench in the land where he will sit for life -- that promises to damage the country, but the unprofessional, procedurally irresponsible way his circus-like hearings were held that dealt a blow to the possibilities for justice in America, a blow from which it may prove hard to recover.

Senator Susan Collins acknowledged the damage the hearings wrought, even if she misunderstood the cause. Delivering her massively disappointing decision to vote yes on Kavanaugh, Collins reflected on what she saw as the passion that overrode the presumption of innocence and expressed "worry" that such behavior would lead to "a lack of public faith in the judiciary." Though wrong in blaming the Democrats for those passions, her conclusion was otherwise spot on. This confirmation has underscored and enhanced the fragility of justice in America, at least as a reflection of law, decency, honesty, transparency, and fairness.

Surprising as this derailment of justice might have seemed, it echoed (and may, in fact, have reflected) another long-unspooling twenty-first-century American degradation of justice. The proceedings created to try those terrorism suspects locked away in the offshore detention center at Guanta'namo Bay, Cuba, pivoted away from many of the country's legal and moral principles (a subject to which I'll return).

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But as a prelude to understanding the harm that the Kavanaugh confirmation process caused, think for a moment about the fundamental premises underlying the Supreme Court and so the American judiciary. The Founding Fathers envisioned it as a body chaired by judges whose professional responsibility was, as Alexander Hamilton wrote in Federalist No. 78, to be "faithful guardians of the Constitution." Toward that end, the Court was to stand independent from politics and the other two branches of government. That idea of judicial independence was, in the oft-quoted words of Chief Justice William Rehnquist, "one of the crown jewels of our system of government."

It's apparent that both Kavanaugh and the committee before which he testified betrayed the goals of justice laid out in that foundational period by violating several major elements of judicial reasoning and procedure. In the process, they helped introduce Gitmo-style justice to the American legal system. Below are four ways in which the committee compromised longstanding aspects of American jurisprudence and justice.

A Quasi-Courtroom

Through it all, both supporters and opponents of Kavanaugh claimed that his congressional hearings did not constitute the equivalent of a courthouse. Not true. Throughout those proceedings, the Senate was, in fact, turned into a quasi-courthouse in which legislators could pick and choose just which kinds of procedures they cared to use, while conveniently banishing or ignoring others.

Think of those hearings as a conveniently watered-down version of a trial in which court procedures were invoked if they aided Kavanaugh, even as -- for anything that might have harmed him -- exceptions were made and regular procedures ignored. For example, Rachel Mitchell, the Arizona prosecutor appointed to question the judge and his accuser, Christine Blasey Ford, by the all-male Republicans on the commission eager to duck questioning a woman, would be a prosecutor in name only. Her time was curtailed to five minutes for each senator whose place she took and when it was Kavanaugh's turn, she was simply shoved aside by the same male senators eager to rant in his favor. Nor, of course, was there anything faintly resembling an impartial judge to oversee Mitchell's behavior (or anyone else's for that matter) or protect the witnesses, as there is in every courtroom in the United States. Such a mock courtroom both raised and violated not only the very idea of a fair trial but a fair process of any sort.

The Evidence, Missing in Action

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One hoped-for result of a trial is the bringing of facts into the open so that justice can prevail. At no point in the Kavanaugh hearings was there even the semblance of an agreed upon set of facts, no less a coherent way to present them. Quite the opposite, they started and ended with a headlong dash away from the facts. Their undermining began in classic fashion when committee Republicans (in conjunction with the White House) agreed to withhold millions of documents relating to the judge and his work as a government lawyer in the White House during George W. Bush's presidency. In July 2001, he had been hired as an associate by White House Counsel Alberto Gonzales and, in 2003, he became assistant to the president and White House staff secretary where he may, among other things, have had a hand in the development of the Bush administration's war on terror policies.

And that was just how those hearings began. In addition, of course, when it came to Kavanaugh's seemingly grim record with women, the accusations of Deborah Ramirez and Julie Swetnick, publicly alleging inappropriate sexual behavior on his part, were ignored by the committee. Not a witness was called on the subject. Similarly, the bevy of statements that might have corroborated his exploits as a binge drinker in high school and college (as well as whether he ever blacked out from drunkenness) were tossed into the garbage pile of unexamined information.

A long overdue FBI investigation of charges against him, finally carried out at the request of Senator Jeff Flake (but under the watchful eye of the White House), proved a distinctly truncated affair that failed to seriously address the idea of establishing facts as a basis for decision-making. The FBI took the single week allotted to it, reportedly interviewed only nine witnesses, and issued a 46-page report. Compare this to a New Yorker magazine investigation of just the claims of Deborah Ramirez for which its journalists interviewed "between 50 and 100" people. As its co-author, award-winning investigative journalist Jane Mayer, commented, "The one thing I know from investigative reporting... the one thing that makes a difference is time. It takes a while to find the right people to talk to and to talk to them enough that you feel that you've gotten the truth from them and to find any kind of documentary evidence that you can. It just takes time." But time is precisely what the Judiciary and the White House did not allow.

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Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)
 

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