June 4, 2007

What's In a Label? Everything, It Would Seem

Hatched by Dafydd

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant":

A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court.

The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system. The ruling immediately raised questions about whether the U.S. will have to further revise procedures for prosecuting prisoners, leading to major delays. [The original law was thrown out by the Supreme Court's Hamdan decision, but not because of any irregularities in the definition of "enemy combatant" or the operation of the status-review tribunals -- the Mgt.]

But Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

And why didn't they label Khadr an "unlawful enemy combatant?" Because the term wasn't available as a separate category under the original law.

However, the status-review tribunals used the same criteria for the designation of "enemy combatant" as they would now use for the designation "unlawful enemy combatant." The term has changed, but the definition is the same:

The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier -- and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by Bush last year, specifiies that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.

All 80 of the detainees who are slated for military tribunals have that same label; thus, military judges will almost certainly dismiss all the other cases as well on the same grounds. They won't even bother to hear any evidence -- as they did not in the Khadr case: They will simply declare they have no jurisdiction and dismiss the charges.

The chief defense attorney, Col. Sullivan, goes far beyond his duty to defend his clients; he says that this decision proves the entire system of military tribunals is "a system of justice that does not comport with American values" and that we should scrap the entire thing. If by "American values," he means really recent ones where decisions turned on "what the meaning of 'is' is," maybe he's right; if so, then the military too has lost its moral compass (as we already knew about the State Department and its ugly offspring, the CIA).

Here is the situation, from what I can determine:

  1. Under the recently enacted law, prisoners can only be tried at military tribunals if they are declared by a status-review tribunal to be "unlawful enemy combatants;"
  2. The status of "unlawful enemy combatant" requires a number of criteria: A, B, C, D;
  3. The earlier status-review tribunal determined that 80 of the 380 prisoners at Gitmo statisfied criteria A, B, C, and D; the other 300 or so did not;
  4. But they used the term "enemy combatant" for those 80 prisoners, per the law they operated under, rather than "unlawful enemy combatant." The current law had not yet been written, and the status-review tribunals had no crystal ball: They did not realize they would have to have used a different term, after the original law was thrown out and rewritten by Congress;
  5. ...Therefore, all the cases must be dismissed for lack of jurisdiction!

This is a perfect example of mistaking the map for the territory; it's like sitting down in a fancy restaurant -- and devouring the menu! The label itself is irrelevant; you can call them "sunshine needlepoint combatants," so long as you require the same criteria as for "unlawful enemy combatants."

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The idea is that, if someone doesn't know a hearing can result in him having to stand trial, he might not put up a vigorous defense; thus, he might be tricked into allowing himself to be (more or less) "indicted" without a fight. But for God's sake, everybody knew that was the purpose of the status-review hearings. Everybody. Both the detainees and their military lawyers knew. The tribunal itself knew. Even the media knew. Nobody was caught by surprise here.

Here's the analogy:

Suppose Congress passed a law saying that everyone who committed murder on federal property would be indicted as a "federal murder defendant;" those so designated could be tried in federal court; and those so designated, during their actual trials, could only use attorneys from a specific list generated by the Department of Justice.

While the Supreme Court hears the inevitable challenge to this, 80 people are indicted by the Justice Department as "federal murder defendants."

But the Supreme Court strikes down the original law, saying defendants must be allowed counsel of their choice at their actual trials after being indicted. Congress rewrites the law, saying everyone who committed murder on federal property would be indicted as a "federal homicide defendant;" and those so designated, during their actual trials, could use any dadburned attorneys they want.

But then, when the first trial comes up, the judge dismisses the charges because the defendant was designated a "federal murder defendant," while the law only allows trial for "federal homicide defendants." That's totally different! Charges dismissed.

This is a perfect example of why normal people hate and despise trial lawyers as a class.

I have a thought. I realize this may be somewhat radical, even crazy, but...

The status-review tribunals almost certainly used, as their standard, the very criteria now required for "unlawful enemy combatants" -- that was, after all, the entire purpose of the status-review tribunals; and the fact that they only applied the "enemy combatant" label to 20% of the prisoners makes clear it was a pretty strict standard.

So why doesn't -- now don't come after me with pitchforks and torches! -- why doesn't President Bush, as Commander in Chief, simply direct the tribunals to look at the casefiles of each of the 80 prisoners determined to be "enemy combatants," check to see that the standards required for that designation match those required for the new designation of "unlawful enemy combatant," and then just change the stupid label?

Problem solved? Oh, no, of course not; it would have to go back to the Supreme Court, wouldn't it? After all, the burning question we face anent these men is what label was used -- not what criteria were used for that label.

I'm starting to agree with Chief Defense Attorney Sullivan (a colonel in the United States Marine Corps, sadly): "[this ruling is] the latest demonstration that this newest system just does not work." Evidently, not even the military itself can put terrorists on trial without getting tangled in absurdist definitions and technicalities that have no relevance to the actual charges... or to fighting terrorism and defending the United States.

Hatched by Dafydd on this day, June 4, 2007, at the time of 2:08 PM

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Last June, a pair of judges on U.S. military tribunals issued a ruling that may be the most boneheaded technicality in American judicial history. (They were not ruling on the same case, but they used the exact same excuse in... [Read More]

Tracked on September 25, 2007 3:07 PM


The following hissed in response by: Davod

You forget that the military lawyers and judges on both sides of this agrument are probably liberals looking for any way to discredit the tribunals.

I als red that it will be difficult for the government to appeal within the 72 hour deadline because the appeals tribubnals have not been set up. Liberals in the miltary again.

Rememember how Hicks got such a mild sentence for what he was supposed to have been doing. See above - liberals in uniform.

You can scream all you like about this is Bush's fault but some stage of the game he has to rely on people to do their jobs.

The above hissed in response by: Davod [TypeKey Profile Page] at June 4, 2007 3:30 PM

The following hissed in response by: Jesus5000

Those pesky liberals! How did they manage to survive basic training and rise to the level of officer in the military, where they are given the power to rule or make judgments? That's not the way us real troop-supporters were raised! By God, if George W. Bush and Alberto Gonzales were in power now, these little child soldier "enemy combatants," unlawful or lawful, would never make it to trial!

The above hissed in response by: Jesus5000 [TypeKey Profile Page] at June 4, 2007 8:15 PM

The following hissed in response by: Davod

Hey Jesus5000:

You really need to read a little about politics in the various JAG Corps before commenting.

The above hissed in response by: Davod [TypeKey Profile Page] at June 5, 2007 12:07 AM

The following hissed in response by: hunter

It is a good reminder that we should truly apply the Geneva Conventions - summary trial and execution for enemy combatants who are not in uniform or clearly working for a recognized state.

The above hissed in response by: hunter [TypeKey Profile Page] at June 5, 2007 5:34 AM

The following hissed in response by: hunter

It is a great lesson as to the wisdom of the Geneva Conventions, which allows for state members to try what we now call terrorists in the field and dispense summary jsutice to them.
It is also a clear demonstration that those who are seeking to undermine this war and to help terrorists will do anything to help terrorists, no matter how trivial, to help them. The lefties supporting this stuff amy claim good faith and patriotism and jsutice as their motives, but their actions prove their lie.

The above hissed in response by: hunter [TypeKey Profile Page] at June 5, 2007 5:38 AM

The following hissed in response by: Chris Hunt

Perversely, this ruling, the most recent of many that attempts to remove enemy combatants from the clutches of the U.S. military, will only reinforce the growing suspicion that we are better off just shooting everyone we pick up, after we have briefly, and presumably, questioned them.

Of course, these interrogation sessions will be heavily prejudiced toward producing results, so the methods used may be a little over the top. After all, we have to dispose of this human detritus in short order, so that we may keep our consciences clear and our moral virginity intact. It's a pity that this will require our soldiers to be less lenient and more ruthless, but that's a small price to pay for a feeling of righteousness.

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at June 5, 2007 9:55 AM

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