And the famous Kennedy question may well portend a win for the government.

Kennedy’s question

Audio of oral argument in Boumediene

Briefs Boumediene

And we don’t have a clue how adequate the lower court, the D.C. Circuit’s proceedings are because they are a frigging secret.

Thoughtsand comments on the oral argument Volokh Conspiracy

Boumediene isn’t a perfect case true, and I share your pessimism about this Court with several 75+ year olds who may retire soon (older than John McCain). As others have commented, the Supremes already have opined they view Gitmo as pat of the habeas constellation, and they will be ruling on adequacy of the D.C. Circuit’s secret hearing an enigma enshrouded in a mystery.

The general standard, even in regular federal courts, is if a defendant is mentally competent, and is knowing and intelligently (strictly in the legal term of art sense, i.e. understands what he is doing) in his desire to waive assistance of counsel and represent himself, then he will be allowed to do so.

And there’s where precedent comes so into play. We already have Padilla’s case, in “regular” court, holding that his physical and mental experimentation and abuse, uninterrupted for years, had no effect on his ability to assist in his defense. Not much more of a leap to say that being physically and psychologically abused for years until you had been programmed into becoming a willing martyr at trial, has no impact on ability to understand waiver of counsel.

And then we have Fitzgerald’s Salah case, where the case law now holds that it is perfectly acceptable to introduce the statements someone gave under coercion as evidence against them, as long as a masked “someone” will show up and say that there was no coercion. My favorite part was how Judge St. Eve handled the hard evidence from logs that Salah was not returned to the normal prison population at the end of his interrogation sessions and was instead kept in isolation.

Anyway, the case law has been cranked out to justify a lot right now. And the existing case law from the Sup Ct on the commissions pretty much says Congress can do what they’ve done.

There are plenty of days the Democrats in Congress sicken me more than Bush or the succession of AGs in his administration.

I think he has stayed with his Canadian lawyers, who were later on the scene, but I thought Colby Vokey was his JAG and that he refused to keep working with him. Vokey did a great job for him, despite almost getting thrown in jail for it. It’s sad to see someone like Haynes end up at Chevron, Goldmsith at Yale, etc. despite their roles in having JAG after JAG forced to choose between ethics and honor on the one hand, and a career they love on the other, all over as unpopular a cause as Goldsmith can gin up in his op pieces, defending the “worst of the worst”

Good to hear about the African coverage though. Feingold has tried and tried and tried to push this message.

Another one that got to me was the defendants being asked about why they are on psychotropic drugs and the responses being cut from the press feed. Isolation in abuse for years, while being the subject of psychological and physical experimentation expressly intended to make them distrust their surroundings (rightfully so in most cases) then told – here ya go, here’s the lawyer we are giving you.

The recent revelation from Khadr’s lawyers (I’m wondering if the Prosecution “got around” to turning over that info only bc they thought it might be reflected in some of what the Canadian guys had and might be ordered to turn over by Canadian courts) as to evidence destruction is pretty much what everyone who was paying attention knew was going on, but without realizing that someone would hold onto the documents telling them to destroy evidence even while destroying the evidence.

Re: Boumediene, I’m not as optimistic as some here. The oral argument did not seem to go favorably towards striking down the MCA, at least on the grounds argued and proven. The problem with the process is that there isn’t a “catch all” case where the evidence of all the matters stacking up can be shown. Instead, there’s been a pick and choose by gov on what gets through the system and a pick and choose in the civilian setting too, all of which have established horrible precedent.

But it’s not the Executive and the Courts alone that have set up the horrible precedents – it’s the way the Democrats in Congress aided and abetted in everything they did and have done. Hamdan hung on a very slim thread and that thread was handed to Congress to hold. They cut it, deliberately and without any care or concern for aiding and abetting and providing amnesty for war crimes. Harry Reid is, in the end, not really any different from Bush and Cheney.

They have talking heads for a change that don’t have an agenda as to terrorism and will give an accurate view of threats instead of the Cheney/Gillespie facade.

For example, one of the places where Al Quaeda is truly expanding their base and converting thousands of people to their cause is Africa. You don’t hear a damn thing about that from this administration–just a distorted mantra that we’re fighting only Al Quaeda in Iraq. If Muqtada al-Sadr decides to go, and he still has control of enough forces,, this adminstration and McCain aren’t going to be able to pretend it’s AQ.