September 25, 2007

Military Tribunals Finally Listening to Big Lizards' Advice

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 two different cases to dismiss all charges against enemy combatants, holding that the military tribunals themselves had no jurisdiction.) We wrote about it at the time:

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"...

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 [Army Col. Peter] 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 two judges -- Brownback and Navy Capt. Keith Allred -- ruled not only that they could not preside over the cases against the two enemy combatants (one of which was the infamous Salim Ahmed Hamdan of the even more infamous Hamdan Supreme-Court decision), they could not even hear evidence about whether the two were, in fact, "unlawful enemy combatants," as opposed to mere "enemy combatants." They decided they (or any other tribunal judge) lacked any jurisdiction whatsoever, and all the cases against all the detainees should be dismissed.

It was like a Barry Sheck dream come true.

Fortunately, a three-judge panel of the Military Tribunal Appellate Court reads Big Lizards. At least, I can only conclude that, as they used virtually the same argument today in overturning the decision of Judge Brownback as we argued in the previous post last June. (They did not specifically consider Allred's decision; but since it was identical with that of Judge Brownback, one presumes the same ruling will reverse that of Allred as well; I wonder if he will mulishly force the court to do so explicitly?) According to the New York Times:

The three appeals judges said yesterday that Judge Brownback had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. The appeals court sent the case back to Judge Brownback for further consideration....

The military appeals court said in its ruling yesterday that Judge Brownback was wrong in concluding that he did not have the authority to decide whether a detainee was an “unlawful” enemy combatant, which would give his court the power to hear a war-crimes case.

The court said the trial judge could hear the government’s evidence that a detainee was an unlawful combatant. An unlawful combatant, for example, could be a fighter who does not wear a uniform and conceals his weapons.

It's hard to fathom just how stupid were the original decisions. I took a stab at in the June post; but reading it over, I don't think I succeeded. Let's see if I can do better in my second time at bat:

1. Congress originally passed a law setting up a system of military tribunals. The basic procedure was that the president first had to evaluate every detainee's case and determine whether each was or was not an "enemy combatant." Those determined to be enemy combatants would then be tried by the tribunals, while the rest would have to be released.
2. They went through the process; the Pentagon held hearings and determined that 80 of the 300+ detainees qualified as enemy combatants. They put them on trial. (The classification hearings determined that a number of detainees used to be enemy combatants but were no longer; in several well-known cases, it became clear the Pentagon was punked.)
3. But before the trials, Hamdan went to the Supreme Court and successfully argued that the procedures at the trial itself were unconstitutional. The Supreme Court did not hold that there was anything wrong with the process that classified Hamdan and the other 79 as "enemy combatants," nor that there was anything wrong with the label itself.
4. But when Congress enacted a new law, responding to the Hamdan decision, they used a slightly different label: They said that only "unlawful enemy combatants" could be tried. However, they used the exact, same criteria to determine status as an unlawful enemy combatant as had been used under the previous law to determine status as an enemy combatant. The two terms were de-facto identical, and even de-jure -- if one dug so deep as to consider the definition, not merely the label.
5. Yet when the first two cases came to trial, Allred and Brownback both ruled that they lacked jurisdiction to hear the trials, because Hamdan and Omar Ahmed Khadr had only been designated "enemy combatants," per the first law, not "unlawful enemy combatants," per the second.
6. This might have been all right... except that they also ruled that they lacked jurisdiction even to hear any evidence that the two defendants were, in fact, unlawful enemy combatants under the new designation; or that, in fact, the two terms had identical definitions.

This is the ultimate in technicalities, exactly the sort of thing that confusticates ordinary people about the American judicial system: Horrific murderers and terrorists should be turned loose -- because the administration used a slightly different label for them (based on earlier legislation) than was picked by a later Congress in writing subsequent legislation, even though the two labels were defined by identical language in each act.

That last point (6) is the dumbass ruling that was struck down today; the appellate court held that the two previous judges did indeed have jurisdiction to hear evidence that the "enemy combatants" (old label) were also "unlawful enemy combatants" (new label):

In the ruling Monday, the military appeals judges, the United States Court of Military Commission Review, agreed that the law written by Congress did say that finding by a military panel that a detainee was an “unlawful” enemy combatant was a prerequisite for prosecution. But the judges said Congress intended the Guantánamo courts to apply usual procedures of military courts.

“This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the court’s own jurisdiction over the accused appearing before it,” the appeals judges wrote. [One can almost "hear" the annoyance and exasperation in the appellate judges' decision.]

Again, since there is no difference between the criteria for each label, it should be easy to prove... unless Brownback and Allred decide to dig in their heels and declare that Congress was wrong to define unlawful enemy combatant as it did; the judges could tack on one impossible criterion after another until they can achieve their goal: making it impossible to prosecute anyone for anything before a military tribunal.

Dennis Edney, Mr. Khadr’s Canadian lawyer, said the defense was considering whether to appeal to the United States Court of Appeals for the District of Columbia Circuit. If there is an appeal, it could delay the resumption of Guantánamo cases yet again.

Mr. Edney said he was disappointed by the military panel’s ruling but not surprised. “Omar Khadr still faces a process that is tainted, and designed to make a finding of guilt,” he said.

Well, yeah; and Mr. Edney is doing everything in his powe to prevent the court ruling, thus put-off any finding of guilt. I believe he has fallen for the great temptation of defense attorneys, where getting the client off becomes the overriding goal, rather than ensure he has a fair trial. (This is the snare into which Lynne Stewart fell, finally winding up convicted of passing messages from Sheikh Omar Abdel-Rahman to his terrorist cell.)

The real underlying problem here should be obvious: There is an amazing amount of resistance among the military's Judge Advocate General (JAG) Corps to the very idea of trying terrorist detainees in military tribunals, notwithstanding both statutory law and military tradition. Most lawyers are liberals, and this evidently applies even when the lawyer works for the military.

I believe most of them desperately want all detainees to be charged and tried in civilian courts, with the full panoply of criminal-defendant rights to counsel of their choice, open and public trial, the ability to subpoena all evidence (including heavily classified evidence) they claim will help their defense, and the power to subpoena all individuals involved in their capture -- from the soldiers trying to fight a war in the field to the Secretary of Defense and even the Commander in Chief who ordered the war fought in the first place -- and haul them all into court to testify for as many weeks as the judge orders.

We see this same tendency in politicians who are too closely allied with the JAG Corps: I believe that is what drives Sens. John McCain (R-AZ, 65%) and Lindsey Graham (R-SC, 83%), for example. Among this crowd, no military tribunal process will ever be fair or sufficient: They reject the very idea of treating terrorists any differently than we treat carjackers and pickpockets. Despite the decidedly uncertain record of attempting to try terrorists in civilian courts, "Jaggers" believe that we'll forfeit the "moral high ground" if we don't sacrifice national security on the altar of judicial purity.

There is a controversial Latin saying: fiat justicia ruat coelum; "let justice be done, though heaven should fall." I happen to believe this, but it critically depends on how one defines "justice." But what these Jaggers have in mind is something far more radical -- and utterly indefensible: "Let procedure be followed, though America should fall."

Even as a libertarian-conservative-ish political non-Euclidean, I consider this a foolish and unnecessary self-immolation; I agree rather with the last sentence of the dissent of Justice Robert H. Jackson in the case Terminiello v. Chicago:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

This certainly applies in the Case of the Footdragging Military Judges. Let us move past the surreal technicalities, get on with the cases, and finally see the backs of these infamous detainees.

Hatched by Dafydd on this day, September 25, 2007, at the time of 3:03 PM

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