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158 | Afterword MCA relegated detainees to the truncated processes of the Combatant Status Review Tribunals (CSRT), where detainees had no legal representation and no access to either exculpatory evidence or evidence against them. The MCA provided for very narrow judicial review of CSRT determinations, with no opportunity to have the reviewing court consider new evidence from the detainee. In striking down the MCA’s limits on habeas for Guantánamo detainees, the Boumediene Court demolished the structure of impunity through geography that the administration’s legal architects, such as David Addington and John Yoo, had painstakingly labored to establish since November 2001. Justice Kennedy, writing for the Court in the 5–4 decision, observed that the political branches cannot “switch the Constitution on or off at will.”4 Kennedy noted the evils of monolithic government, in which the political branches march in lockstep. He suggested that the separation of powers, with its grant of authority to the courts, helps to break up these dangerous concentrations of authority. According to Kennedy, the framers knew that “pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power.”5 For Kennedy, lack of accountability did not follow from the detention of individuals outside the borders of the United States, or from conceptions of legal or technical sovereignty.6 Instead, the Court held that habeas jurisdiction existed because the United States had de facto jurisdiction and control over Guantánamo, acquired through the extended lease the United States had signed with the Cuban government shortly after Cuba attained its independence in the Spanish-American War.7 Since the Guantánamo detainees had access to habeas, Congress could curb this access only by providing an adequate substitute, which the Court ruled that Congress had failed to do. According to the Court, the CSRT process did not safeguard fundamental rights, because of its failure to give detainees access to evidence or an opportunity to cite new evidence to the reviewing court.8 As a result, the Court said, the MCA’s limits on habeas were unconstitutional. The Court’s ruling in Boumediene signaled an end to detours around the time-honored American tradition of individualized adjudication of dangerousness . After Boumediene, federal judges began ruling on the individual cases of detainees. These cases were not cut-and-dried; as befits individualized adjudication, sometimes the government prevailed, and sometimes the detainee.9 Notably, however, the courts conducted an independent examination of the evidence, declining to accept the government’s say-so as a substitute for proof. Afterword | 159 The twilight of Bush’s presidency also brought an extraordinary acknowledgment from a senior official in charge of the military commissions about the abusive treatment of a detainee. “We tortured Qahtani,” said Susan J. Crawford, who had served as “convening authority” for the military commissions , in charge of referring cases for prosecution. Crawford, who had also served in the Reagan and George H. W. Bush administrations, revealed deep concern about the combination of tactics used against Mohammed alQahtani , the alleged “twentieth hijacker” discussed in chapter 2. These tactics included sleep deprivation over forty-eight days of interrogations, as well as sexual humiliation. Interrogators forced Qahtani to wear a woman’s bra, told him repeatedly that his mother and sister were whores, and required him to perform dog tricks. Qahtani had to be taken to the hospital twice during his lengthy interrogation for the condition known as bradycardia, in which the heart rate falls below sixty beats a minute. Qahtani’s heart rate dropped at one point to thirty-five beats per minute—a condition that if allowed to persist can lead to death.10 Crawford, a lifelong Republican, did not believe that Qahtani could be prosecuted in light of his treatment, which she said undermined the voluntariness and reliability of any statements he made to authorities about his alleged role as the twentieth hijacker. Crawford may have been incorrect on the prospects for Qahtani’s prosecution . Evidence of Qahtani’s foiled entry into the United States at the Orlando Airport, with 9/11 straw boss Mohammad Atta caught on videotape waiting in vain for Qahtani’s arrival, along with Qahtani’s subsequent capture in Afghanistan, may permit a jury to infer his guilt.11 In a possible precursor to a successful prosecution of Qahtani, the Obama administration obtained a guilty plea from Ali Saleh al-Marri, the last alleged “enemy combatant” detained within the United States.12 Crawford was not the only significant official from the Bush...

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