July 16, 2009

The Obamacle's "Drag and Drop" War Against the War Against the Axis

Hatched by Dafydd

I believe we can safely generalize to this extent: President Barack H. Obama may propose, but his attention wanes when he must then dispose.

Two days after taking office, he ordered a halt in all proceedings of the military hearings desperately trying to try detainees in the Guantanamo Bay Detention Facility, pending an administrative "review." He electifyied the Left (and electrocuted the Right) with a round of stunning rhetoric (Obama "proposes"); but when it came time to actually conduct the review, he lost interest -- nobody "disposes" (and Moses supposes his toeses are roses).

The review lags, and cases drag and droop. Soon some cases may finally drop from sheer inattention:

The unfinished review of the cases against 229 suspected terrorists held at the detention center here has slowed the legal process to a crawl, leaving military prosecutors - and even judges - bewildered as to how to move forward....

In another hearing Wednesday, Ibrahim Ahmed Mahmoud al Qosi, a top aide to Sept. 11 mastermind Osama bin Laden, spent 90 minutes in a high-security courtroom behind razor-wire fences as military prosecutors argued to delay the case until at least September - the deadline for the review.

U.S. Marine Corps Capt. Seamus Quinn, a military prosecutor, told the judge that proceeding with the case now "would be an injustice to all concerned." He said the delay is needed to "address and eliminate all possible challenges" to the government's case.

Defense attorneys also went on the attack, asking the military judges to either dismiss the charges or move forward. "You cannot sit somebody in indefinite detention. It violates every principle we have as Americans," said Navy Lt. Cmdr. Travis Owens, a lawyer representing Al Qosi.

The reason prosecutors moved for a postponement in the Qosi case is that, when the review ends -- if there ever is an end -- Congress will almost certainly have to rewrite the entire rulebook (yet again), in order to satisfy Obama's (and Hillary Clinton's, and Joe Biden's) sense of "fair play for terrorists." If the trials proceed now, then in September or October -- whether the hearing was complete or not -- they will have to start all over.

Defense attorneys are playing "damned if you do, damned if you don't," knowing that it's win-win for them:

If trial is delayed, they will argue that the detainee's right to a speedy trial is being violated.

And if it's not, then they'll argue that the rules were changed in the middle of the game!

Both claims will likely find much support from a chronically conflicted White House, which might jump at the chance to use a legalism as an end-run around actually trying terrorists at all, at all.

But why are we in this situation in the first place? Because on January 22nd, the barely unwrapped Obamacle issued a barely pondered pronunciamento. That brought to an abrupt halt proceedings that had been carefully crafted by a combination of a White House that had been fighting the war against the Iran/al-Qaeda axis for years, two different Congresses, and the United States Supreme Court -- ruling twice.

So, how is the B.O. review going so far?

A government task force has reviewed half of cases against the 229 suspects to determine which ones should be transferred, tried or held indefinitely, said a military official, who spoke on the condition of anonymity. The White House did not respond to questions about the status of the review and the delays in proceedings.

Some "military official" -- a general? rear admiral lower half? colonel? 2nd lieutenant? PO-3? -- says the Obamarama has managed to review 114½ cases in a scant six months; presumably those are the easier ones. Does that mean it's going to be another year gone before they've reviewed the toughies?

And what happens if Obama forgets to rescind his executive order closing Guantanamo Bay before finishing the review -- are all detainees simply released into the wild, without even being tagged? But how will we know their migration routes, their mating proclivities, or even if they're becoming endangered?

Closing the military prison - as Mr. Obama has vowed to do by January - has proved far more difficult than originally thought.

Gee, you think?

Here's a partial timeline of the Dashing Dance of the Detainees:

November 13, 2001: President George W. Bush announces that some detainees will be tried by military tribunal. Democrats drag the proceedings out as much as possible, kicking and screaming every step of the way.

During the 2004 campaign: Democrats demand that all detainees be transferred to civilian courts and tried alongside federal credit-union robbers and marijuana smugglers.

December 30th, 2005: President Bush signs the Detainee Treatment Act (DTA), which limits all interrogations by Department of Defense employees to those allowed by the Army Field Manual, but also makes explicit that unlawful enemy combatants detained outside the territory of the United States have no habeas corpus rights to file petitions in U.S. federal courts. CIA and other non-military interrogators are prohibited from using "cruel, inhuman, or degrading treatment or punishment," but not restricted to the Army Field Manual. Classifications (lawful or unlawful enemy combatant) finally start to roll.

June 29, 2006: US Supreme Court rules in Hamdan v. Rumsfeld -- actually, Justice Anthony Kennedy rules, since the case was 5-3 (Chief Justice Roberts recused himself, having ruled against Hamdan as a circus-court judge) -- that the military tribunals set up by President Bush are inadequate; Court strongly hints that Congress should enact legislation. Everything on hold.

September 28th-29th, 2006: Congress enacts legislation, passing the Military Commissions Act of 2006 (MCA). Classifications start over from scratch, but at least they finally start to roll. Again.

June 29th, 2007: The Supreme Court, which had earlier chosen not to hear the cases Boumediene v. Bush and Al Odah v. United States challenging the MCA, changes its mind and says it will hear the cases. Everything on hold. Again.

December 5th, 2007: Supreme Court hears oral arguments. Everything still on hold.

June 12th, 2008: Supreme Court rules -- actually, once again, Anthony Kennedy rules, since the case was 5-4 -- striking down the MCA as well as the DTA, holding that neither of these acts gives enough rights to terrorists in al-Qaeda and other jihadist organizations. The Court holds that the MCA is inadequate (congressional legislation notwithstanding), and that terrorist prisoners captured on the battlefield deserve either full-blown civilian trials, or at least a military trial that is at least as "fair" as, say, an American soldier being court-martialed for, e.g., robbing a military credit union or smuggling marijuana. Everything must start over from scratch.

November 4th, 2008: Barack H. Obama elected president of the United States. Everything on hold. Again.

January 22nd, 2009: Obama issues EO formally suspending all prosecutions of terrorist detainees until his scream team finishes reviewing all cases. Whenever that turns out to be. Everything at a dead stop, except for defense motions to dismiss charges on grounds that terrorists are being denied a speedy trial.

And now, the punchline:

[O]n May 21, Mr. Obama said in a speech at the National Archives in Washington that the tribunals are "an appropriate venue for trying detainees for violations of the laws of war." But at the same time, he lashed out at the Bush administration for what he called undue delays. [!]

"For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of military commissions that were in place at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that - three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setback after setback, cases lingered on," he said.

I can't imagine why we haven't convicted more terrorists -- it's eerie; it's... inexplicable!

I fear that on the issue of military tribunals commissions courts-martial civilian trials indefinite detention under Obama's, not Bush's orders, the One We Have Been Waiting For is still keeping us waiting, while once again he votes -- "Present!"

Hatched by Dafydd on this day, July 16, 2009, at the time of 11:43 PM

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The following hissed in response by: AD

Why do I suspect that the Sergeants of the World know the solution to this dilemma...
No Prisoners - No Tribunals - No Problem!

The above hissed in response by: AD [TypeKey Profile Page] at July 17, 2009 6:59 AM

The following hissed in response by: Geoman

I think Obama is now standing in the one corner of the room that has yet to be painted, and wondering how he got himself in such a fix.

It really is a pattern with him. Demonize and pontificate (the economy, Gitmo, health care, the stimulus, foreign policy). Then find out that it is a tougher nut to crack than he thought. Then blaze forward anyway, damn the risk. Then stop, stunned and befuddled at the results. UUUUh....now what?

The above hissed in response by: Geoman [TypeKey Profile Page] at July 17, 2009 9:59 AM

The following hissed in response by: LarryD

Also, No Intel, AD.

But what really torques me off is (if I recall correctly) that Congress in the MCA removed the issues from Supreme Court jurisdiction, exercising authority that has been in the Constitution from the beginning. So the SCOTUS clearly violated the Constitution in even hearing the cases challenging the MCA.

The above hissed in response by: LarryD [TypeKey Profile Page] at July 17, 2009 11:11 AM

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