The Lady Weeps

I spent spent a long time trying to unpack a comment made by Senate Minority Leader Mitch McConnell regarding our civilian justice system. Here's a description of his comment:

The top Republican in the Senate, Mitch McConnell, says the Casey Anthony trial is proof that American courts aren't proper venues for trials of suspected terrorists.

Say, what?

Yes, it is difficult to get a conviction in a criminal trial. The government has to present enough evidence to convince a jury that the defendant is guilty beyond a reasonable doubt. Apparently Mitch McConnell thinks that's a bad thing, a flaw. Now that is bad enough, but it gets worse. He thinks foreigners don't deserve constitutional protections.

"I don't think a foreigner is entitled to all the protections of the Bill of Rights," McConnell told Fox News. "They should not be in U.S. courts."

So much for the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

I think Michael McGough got it right in his brief post on a Los Angeles Times opinion blog:

It's not often that someone comes out in favor of kangaroo courts, but Senate Minority Leader Mitch McConnell came close to doing so the other day. McConnell said that the acquittal of Casey Anthony proved that accused terrorists shouldn't receive civilian trials. McConnell and other Republicans prefer that they be tried by military commissions.

Problem is, military commissions -- though different in some respects from civilian trials -- still require proof beyond a reasonable doubt. Let me quote: "Before a vote is taken on the findings, the military judge must instruct the commission members 'that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt.' "

McConnell is going to have look elsewhere for his idea[l] judicial system. Maybe Saudi Arabia?

Where do these guys come from and why are they running my country?

Of Dogs, Ponies, And Show Trials

Military justice is governed by rules somewhat different than civilian justice. For example, in military cases, the jury is comprised of military officers rather than civilians culled from a pool of citizens from the area of the trial. This is a significant difference. Those officers not only know each other, but also know that their superior officers will be watching the result of the trial and that could affect the futures of the "jurors."

Morris Davis, former chief prosecutor for the military commissions in Guantanamo Bay, points out the problems of military trials when the chain of command, reaching up to the White House and the Attorney General, gets involved in his opinion piece in today's Los Angeles Times. He uses the cases of Pvt. Bradley Manning and Khalid Shaikh Mohammed as an example on how simple justice can be betrayed.

"Command influence is the mortal enemy of military justice."

Robinson O. Everett, former chief judge of what is now the Court of Appeals for the Armed Forces, wrote those powerful words in 1986. They underscore the importance of banning the power inherent in command from military courtrooms. Congress wrote such a ban into the Uniform Code of Military Justice more than 60 year ago, recognizing that true justice requires the unbiased application of the law to the facts on scales that are not tipped by the fingers of extrajudicial forces. [Emphasis added]

Exactly so. And this justice must be accorded to all defendants, even those accused of committing the most heinous of crimes. This is elementary, or should be to anyone who ever successfully completed a middle school civics class. It is especially important in military commission cases because those extrajudicial forces include the chain of command suggested above.

In the cases of Pvt. Manning and Khalid Shaik Mohammed, however, the alleged legal scholars in that chain of command have already spoken and made clear the results that are expected in each case.

This past weekend, President Obama, during a fund-raising trip to California, said of Pvt Manning, "He broke the law." Not "He has been charged with breaking the law," but that he did it and needs to be punished.

Attorney General Eric Holder has been quoted as saying with respect to the case of Khalid Shaik Mohammed that "Failure is not an option."

Surely such comments from the Commander in Chief and his chief legal officer constitute "extrajudicial forces" weighing on members of the tribunals trying each of the defendants and just as surely will have an effect on the outcome of each trial.

I fear the American experiment is failing.

Mad Hatter Land

I have really mixed emotions on what I normally would have considered an unmixed success of the American system of constitutionally based justice. Of course, normal doesn't seem to exist anymore, so I guess I'll have to get used to the ambiguities and paradoxes of the post-9/11 America. A man was tried for an horrendous crime and was found not-guilty of all but one charge of the more than 280 charges brought against him.

The trial was run with all the rigors the US Constitution requires, including the exclusion of unlawfully obtained evidence. The defendant will serve at least twenty years for the crime he was convicted of. On its face, the story seems to prove that the US can in fact deal with terrorism in a constitutionally approved way. Scratching the surface, however, yields a different picture.

From the New York Times:

Ahmed Ghailani will face between 20 years and life in prison as a result of his conviction on one charge related to the 1998 embassy bombings in Africa. But because a jury acquitted him on more than 280 other charges -- including every count of murder -- critics of the Obama administration’s strategy on detainees said the verdict proved that civilian courts could not be trusted to handle the prosecution of Al Qaeda terrorists.

Say, what? Civilian courts can't be trusted? Pretty astounding conclusion to be drawn, yet that's exactly the one being proclaimed by those who wanted revenge, not justice.

Here are a couple of quotes cited in the article which shows the deep divide the nation is facing. First, from the avengers:

"This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts, said Representative Peter King, Republican of New York. “We must treat them as wartime enemies and try them in military commissions at Guantánamo.”

Next, from those who believe the Constitution isn't just for some of the time:

...Mason Clutter, the counsel of the Rule of Law Program at the Constitution Project, a bipartisan non-profit group, said that Mr. Ghailani will serve a lengthy sentence and will have far fewer arguments to make in appealing his conviction than if he had faced a military trial.

“The system worked here,” she said. “I don’t think we judge success based on the number of convictions that were received. I think we judge success based on fair prosecutions consistent with the Constitution and the rule of law.”

Now, if the story ended with just these two views, I wouldn't have the mixed emotions I referenced at the start of this post. I know which side I'm on, and I know I have to work hard to make certain that side prevailed. But this isn't where the story ends, and at this point I'm not at all sure what can be done, short of another American Revolution.

“This complicates the equation with regard to civilian trials of high-level Al Qaeda detainees that the administration would not release” even if they were found not guilty, said Juan C. Zarate, who served as deputy national security adviser for combating terrorism in the Bush administration 2005 to 2009 but who has criticized Republicans who called for never trying terrorists in civilian court.

“The paradox with these kinds of cases has always been that if these individuals are found not-guilty, will the American government let them go free, which is the construct of a criminal proceeding? And the answer is no. That is the reality. This case highlights that tension, and will complicate the political debate about how to handle more senior Al Qaeda figures, like Khalid Sheikh Mohammed.” [Emphasis added]

So this is the America of the 21st Century?

Horrifying, isn't it.

The Message, Not The Messenger

I hardly expected an opinion piece in support of trying alleged terrorists in civilian courts rather by military commissions to be written by Sen. Dianne Feinstein (D-CA), yet that's just what I found in today's Los Angeles Times. Sen. Feinstein is not exactly the most liberal of Democrats, yet even she is aware of the success stories from the federal court system.

After noting the recent guilty pleas from three men in three separate cases, the senator also recites the statistics on similar cases prosecuted in the civilian forum:

Swift guilty pleas and cooperation are hardly the stuff of a weak justice system. And it's important to note that cooperation happens often in federal criminal prosecutions, but not in military commissions. Terrorist conviction statistics, provided by the Justice Department's National Security Division, are impressive:

• By mid-March of this year, 403 terrorism suspects had been tried and convicted in federal district courts since the Sept. 11, 2001, attacks.

• Of these, 159 were convicted of Category I crimes — violations of federal statutes directly related to international terrorism.

• The other 244 were convicted of Category II crimes — violations of fraud, immigration, firearms, drugs and other statutes in cases with identified links to international terrorism.

A dozen of these convicted terrorists were sentenced to life in prison. One was sentenced to 155 years, and 18 others received sentences of 20 years or more.

The average sentence handed down to defendants charged with terrorism, between 2001 and 2009, is 19.7 years, according to the Center on Law and Security at New York University's School of Law.

And all of this happened in a venue bound by constitutional guarantees for the defendants, including the right to know what evidence will be introduced by the prosecution and the right to cross-examine witnesses produced by the prosecution, guarantees that don't exist in the dog-and-pony shows known as military commissions.

Fair trials don't weaken our national security, they enhance it. A dry recitation of the facts may not be as inspiring as a passionate appeal to the brilliance of the US Constitution, but it can be just as effective. It certainly was in this case.

And for that I am grateful to Sen. Feinstein.

I Give It A 7: Catchy, But You Can't Dance To It

There was an interesting take on Attorney General Eric Holder's announcement that those charged with the 9/11 conspiracy currently held at Guantanamo Bay would be tried in a civilian court in New York City by Geoffrey Robertson in the "Comment Is Free" section of the U.K's Guardian. While Mr. Robertson finds much to cheer about in the administration's decision, he also expresses his disappointment in one key part of the decision.

The US attorney general, Eric Holder, deserves two cheers for his brave decision to bring the alleged 9/11 conspirators to an open trial in New York rather than to put them through a discredited military commission process. But his demand for the death penalty will be counterproductive: the obscene ritual of lethal injection will bestow on convicted defendants the martyrs crown they so desperately crave.

This is a trial that must be seen to be fair – not only by the American media (which to judge from the questions at Holder's press conference has already made up its mind that the defendants are guilty) but throughout the world. Much will depend on the choice of judge, who must be conspicuously independent and of sufficient steel to reject evidence obtained by torture – there is no doubt that Khalid Sheikh Mohammed has been waterboarded. ...

The death penalty decision will ultimately be for the jury, and it can only be hoped that they will refuse to contemplate the spectacle of convicted defendants, spot-lit and stretched on a hospital trolley, in some auditorium which must by law be large enough to accommodate relatives of their victims. Does Holder plan to requisition a baseball stadium?

It would be a martyrdom beyond the wildest dreams of the most fanatical Islamic terrorist. There is one reassuring precedent – the jury trial in Virginia of Zacarias Moussaoui, who was alleged to be the "20th hijacker". The jury rejected the prosecution's overblown demand for his death, although the judge had unfairly allowed them to hear tapes of the last moments of Flight UA93 in order to inflame their prejudices. [Emphasis added]

Snark about stadia aside, Mr. Robertson does raise a valid pragmatic point. At this point, the death penalty is not a punishment in the eyes of these Islamic fundamentalists. It is a reward. Whether guilty or not, they will be revered as martyrs. But Mr. Robertson also looks to the barbarism of the death penalty to which this country clings so desperately. If Mr. Holder is going to try the defendants in this country, he really didn't have much choice in the matter of the punishment being sought.

There was, however, another option (which Mr. Robertson pointed out), one which might anger the right wing, but which would signal the intent of this administration to return the US to the world community, and herein lies the most interesting part of the essay:

There is, of course, a better solution. The 9/11 atrocity was, in international law, a crime against humanity and there is no doubt that the UN could have provided three international judges and the kind of trials currently being visited upon Charles Taylor and Radovan Karadzic. That would end not with one word from the foreman of the jury ("Guilty"), which will hardly convince doubters, but with a closely and carefully reasoned judgment setting out the case for guilt beyond reasonable doubt. But international courts cannot impose the death penalty and American attachment to this punishment is still unassailable.

I have long argued that the attacks on 9/11 were criminal acts and should have been handled as such, just as the first attack on the World Trade Center was, rather than as a matter of high-level national security and all the secrecy and suspension of basic civil rights that entails. I am now willing to admit that there might be an even better way of handling those crimes, the way Geoffrey Robertson suggests.

Unfortunately, this country, which still willfully insists on remaining in the grips of the simplistic views on revenge and retribution of spoiled children, might have squealed like those same children refused an extra serving of dessert. That's where leadership, real leadership comes in. President Obama could have taken the extra step and referred the matter to the UN, preparing the country with a speech that spelled out with great specificity on how those attacks were clearly a crime against humanity for which the entire world needed to bear witness and to bring judgment. That just might have defused the yammering of the far right and would have nudged the rest of the country towards some semblance of adulthood, especially as it pertains to the death penalty. If we expect to be seen as civilized, then we must take on the trappings of civilization, including the one which sees the death penalty as an excuse for perpetrating the violence we suffered.

That, of course, didn't happen. Still, President Obama did take a step towards adulthood, albeit a baby step, by moving this high profile case to a civilian court which will hopefully accord these defendants all the rights that other defendants charged with a crime in this country have: the right to knowing precisely what the charges against them are, a vigorous defense, the right to full disclosure of all evidence against them and all evidence which might exonerate them, and the right to a jury. And for that I am grateful.

Government Assisted Suicide

The latest word on how President Obama is going to tweak the military commission system he once promised to dismantle is that he is going to ask Congress for legislation to allow for guilty pleas in capital cases. Obviously directed toward the "9/11" cases against five Gitmo detainees, such legislation would allow government prosecutors to avoid the embarrassment of having evidence obtained through torture thrown out and losing the cases, according to the NY Times:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom. ...

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to acts of terrorism but whose cases present extraordinary challenges. Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons. In any legal proceeding, the reliability of those statements would be challenged, making full trials difficult and drawing new political pressure over detainee treatment.

Why is the White House asking for such legislation when the detainees themselves want to plead guilty? Well, first of all, there is no provision for guilty pleas in cases where the penalty is execution because the original Military Commissions Act was drafted with the military justice system as a template, and that system does not allow for such guilty pleas. Because of the seriousness of the alleged crimes and the punishment for the commission of such crimes, and as a matter of fairness, that system requires prosecutors to present evidence proving that anyone who is to be executed was actually guilty of the crimes charged. That way, there could be no doubt, much less reasonable doubt, of the guilt of the accused. The military justice system was to play no part in any government-assisted suicide of the delusional or profoundly depressed.

In the cases of the Guantanamo Bay detainees, such a protection is even more necessary. Yes, the five men charged with being part of the 9/11 attack on the US have asked to plead guilty as way to ensure their martyrdom, but the government should have no role in granting such martyrdom, especially given the background of the cases. These men have been tortured and have been held under deplorable conditions. It is entirely possible, if not downright probable, that they are not mentally competent to stand trial, much less to make such a decision. And even if they are determined to be competent, the government should still not be complicit in what can easily be seen as one last act of terrorism: the kind of martyrdom which will resonate throughout the Islamic world.

It's clear that government prosecutors want to be able to avoid even the kind of show trial the military commission system promises. Even such a system would require shedding some light on just how heinously this country behaved in this sordid and extended episode, and even a little light might mean that the court would feel compelled to throw out the evidence because of the way it is gathered and the accused, who just might be guilty, released.

But that is the whole point of a real system of justice in which any accused is deemed innocent until the prosecution proves his or her guilt beyond a reasonable doubt. That is what the military commission should require, and no less. One critic of the system as constituted raised that very point in the article:

Requiring prosecutors to reveal what they know about detainees and how they know it would cast light both on the interrogation techniques used against the men and the acts of terrorism for which they are facing death, said Denny LeBoeuf, an American Civil Liberties Union lawyer who works on Guantánamo death-penalty issues.

“Don’t we have an interest as a society,” Ms. LeBoeuf asked, “in a trial that examines the evidence and provides some reliable picture of what went on?”

Exactly so.

Trial And Error

It is some consolation that others agree with me that President Obama's decision to resurrect the military commission system for detainees held at Guantanamo Bay is simply wrong. It is, however, reassuring that one of those who agree with me is a columnist for Germany's Financial Times Deutschland. The piece was written by Fidelius Schmid and is titled "George W. Obama." Unfair? I think not.

...now Obama wants to resurrect military tribunals, as well - the same ones the Bush administration, in defiance of every established Western principle of law, had wanted to use to try suspected terrorists. This decision is not just another intelligent application of knowledge, but rather a regrettable weakness of a man who inherited a catastrophe. ...

The tribunals Bush created are simply outrageous. They limited the rights of defendants to legal counsel, permitted hearsay as evidence, and allowed confessions extracted during torture. Anyone who defends these legal institutions should not criticize Islamic Sharia courts.

Admittedly, Obama does want to improve the tribunals. Statements that had been extracted with the aid of so-called waterboardings and other brutal interrogation techniques will no longer be allowed. This surely mitigates some of the outrage, but does not get him off the hook entirely. With all due respect and understanding for the tactics essential for domestic politics, his decision on the tribunals is counterproductive and unnecessary.

...there are only two options for these prisoners. Americans could either turn them over to Afghan or Iraqi authorities, or else just keep them in custody. Their concern is legitimate. But then these prisoners would have to be entitled to all the rights the Geneva Convention outlines for the protection of prisoners of war. ...

It is complicated and going to take a long time to issue a final sentence to anyone in a proper court. Can anyone be sentenced there without first having proven his guilt beyond any doubt? Could a guilty party inadvertently escape justice? Yes, this is true. And yes, this is not practical. But these are basic principles, and this is the best the U.S. and all Western-style democracies have. These principles distinguish Western democracies from dictatorships, quasi-democracies, and theocracies. [Emphasis added]

Preach it, my brother!

Those are exactly the points which are in play here. I don't know Mr. Schmid's age or his ideological background, but it is clear he appreciates the difficulties and the successes of the Nuremberg Trials. In those proceedings, international law was as much on trial as the defendants, and international law came through brilliantly, primarily because the nations and prosecutors involved held the concept of the rule of law, not the rule of a man or men, to be paramount. Prosecutors were prepared to fail, but they were not prepared to accord those in the dock, many of whom were characterized as monsters, anything less than full legal rights.

It is easy to accord those rights to the guy down the block busted for driving under the influence of alcohol. It is harder to accord those rights to rapists and murderers, but it is possible. Hardest is according those rights to those who admit to wanting to bring an entire nation to its knees by terrorist acts. But if we truly believe in the rule of law, all of those defendants must be entitled to it. There can be no exceptions. None. That is where the rubber meets the road in democracies such as ours.

The real danger to this country is not the so-called terrorists or the actual terrorists being "detained" at the prison camp in Cuba, it is the loss of one of the most integral threads in the fabric of our democracy: the right to a fair trial, one in which all evidence is discoverable, all witnesses available for cross-examination, all charges known. Anything less is a "show trial," the kind the Soviet Union and Latin American countries in the last century were famous for.

Today we honor those who died in war. We are told that they died so that we could be free. If that is truly the case, then we dishonor their lives and their deaths by diminishing that freedom by turning our backs on the basic principles of our Constitution. I want no part of that dishonor.

Another Disappointment

President Obama has done another 180 on a campaign promise: he has decided to reinstitute the military commissions for trying the Guantanamo detainees. His excuse for doing so is that he has added protections more in line with civilian rules, but the tinkering is just cosmetic in the long run.

From the NY Times:

The Obama administration’s proposed changes would limit the use of hearsay evidence against detainees, ban evidence gained from cruel treatment and give defendants more latitude to pick their own lawyers. Cases against 13 detainees were suspended in January. The administration said Friday it would seek to extend the suspension another four months. ...

The added rights proposed by the administration still fall far short of the protections provided defendants in federal court, lawyers said, predicting that the administration would encounter vigorous new legal challenges that could end up in the Supreme Court.

The first objectionable feature of the new-and-improved system is the further delay in any kind of proceedings. More than five months have passed since the initial suspension and now another four month suspension is being contemplated so that the new rules can be written, refined, and implemented. By the time all of this is done, the detainees subject to the military tribunals will have lost another year of their lives.

The second and more important objectionable feature is the fact that the changes being proposed only slightly enhance the chances of the defendants at trial. Not all hearsay evidence is being excluded, only some. In civilian criminal trials, hearsay evidence is allowed in only under the most stringent of rules, such as the death of the original speaker and then only with collaborative evidence. The purpose for such exclusion is to entitle the defendant to confront his accusers, to cross-examine them, to challenge their credibility.

It doesn't take a psychic to predict that the government will rely on such devices as the "state secret" tool to get much of the hearsay in, thereby depriving the defendant of his right to cross-examination. Not only will the speaker be made unavailable, his very identity will be hidden.

The whole point of these military commissions as conceived by the Bush White House was to ensure convictions, to give the prosecutors the easiest slam dunks of their careers. Apparently President Obama has bought into this theory, only he wants to package it a little differently. The primary targets, those detainees accused of plotting the 9/11 attack, must be convicted at all costs so that we can have our revenge. It's the justice of the Old West: catch'em, try'em, and then hang'em.

Even the White House press secretary had to strain at a reason for supporting the president's decision:

The White House press secretary, Robert Gibbs, objected when reporters suggested that the president was planning to use the Bush administration’s system for prosecuting terror suspects. Mr. Gibbs said it was more like buying a used car but “changing the engine and painting it a different color.”

Yeah, yeah, Mr. Gibbs. The problem is that the rest of the drive train, including the transmission, is deeply flawed, and the brakes never worked. It's still a lemon.

Say, What?

Now here's a stunning bit of news: the judge presiding over the Military Commission "trial" of the Guantanamo Bay detainees charged with conspiracy in the 9/11 attack has suddenly retired. From that WaPo article:

The chief military judge at Guantanamo Bay announced his immediate retirement yesterday, effectively scuttling the slim chances that the trial of conspirators in the Sept. 11, 2001, attacks could get underway before the Bush administration ends.

Judge Ralph H. Kohlmann, a Marine colonel, had been overseeing proceedings against major defendants at the military prison in Cuba, including Khalid Sheik Mohammed, the self-professed mastermind of the attacks. It has long been a goal of some Pentagon officials, particularly those appointed by the Bush administration, to begin the capital trial of the Sept. 11 conspirators before leaving office.

Kohlmann, who was scheduled to retire in April and already had lined up a job, appointed Judge Stephen Henley, an Army colonel, to take over the trial of Mohammed and four co-defendants. ...

At a hearing in September, Kohlmann rejected a motion by Mohammed that the judge disqualify himself because his imminent retirement could disrupt the process.

Kohlmann, who is responsible for appointing judges to cases at Guantanamo, selected himself for the 9/11 proceeding. He said in September that Mohammed's claims were "completely wrong" and rejected the motion.

So, what's the deal? Why the departure six months ahead of schedule? That's unknown. The article indicates that Major Kohlmann had not returned the Pentagon's phone calls on the matter. Perhaps Kohlmann's new employer wanted him to start earlier, or without the onus of having presided over one of the sham trials. Or perhaps the major wanted to spend some time with his family. Or maybe his conscience was beginning to bother him. We don't know.

As interesting as such speculation is (and that's all it is, speculation), the real question is what this does to the trial in which he was engaged. One of the defense attorneys in the case suggests that it will delay matters. After all, the new judge has to be brought up to speed on the case and has to hold a hearing for the parties to determine whether he has any biases in the matter. The ACLU has suspects that it's a ploy by the Pentagon to actually speed things up by performing some kind of fancy end-around.

At this point it's hard to tell. What Major Kohlmann has done, however, is to keep the Military Commission proceedings and Guantanamo Bay in the news, and that, in the long run, is a good thing. It allows us to keep the pressure on President Elect Obama to keep his promise to close "Camp Justice" and to bring all of the detainees to the US for trials in the civilian courts where they have at least a chance for real justice.

Not Your Typical DFH

Today's NY Times has an interesting article about one of the Guantamo military defense lawyers. It seems that Lt. Cmdr. William C. Kuebler, military lawyer for Gitmo detainee Omar Khadr, has been raising all sorts of cain over the way the Military Commission which will try his client has been set up.

The Bush administration’s war crimes system “is designed to get criminal convictions” with “no real evidence,” Commander Kuebler says. Or he lets fly that military prosecutors “launder evidence derived from torture.”

“You put the whole package together and it stinks,” he said in an interview.

Lt. Comdr. Kuebler is the man who released the press report that revealed that interrogators engaged in questionable techniques were ordered to destroy their notes afterwards. He also has spent a great deal of time agitating in Canada, his client's homeland, trying to get that nation to bring some pressure to bear against the stacked trial.

Just another misguided liberal hippy? Well, not exactly.

Kuebler, according to the article, is a born-again Christian who has always voted Republican. It's just that he apparently takes his religion's tenets seriously, as seriously as he takes his military oath to defend the constitution and his oath as an attorney to represent his client vigorously. As a result, what he sees as a mockery of justice dressed in terms of a "fair trial" sickens him.

And it's not like he's going to benefit from his actions. I think it pretty likely that his career as an officer in the US Navy has pretty much been derailed.

I guess courage comes in all sorts of packages.

Either Way, He Loses

Now here's a twisted bit of justice: a defendant goes to trial, is acquitted, and then is returned to detention. That is exactly what might (and probably will) happen to Mohammad Jawad, who has been held at Guantanamo Bay and who will be among the first to be tried before the Military Commission. From an AP article published in today's Los Angeles Times:

Former Army Sgt. 1st Class Christopher Martin says an Afghan who allegedly wounded him, another soldier and an interpreter in a grenade attack in Kabul should never be let out of U.S. military custody.

More than five years after the attack on a crowded street in the Afghan capital, suspected assailant Mohammed Jawad faces an arraignment before a war-crimes tribunal on Wednesday, marking one of the first tests for America's first war-crimes tribunals since the World War II era.

Even if Jawad goes to trial and is found innocent, Martin may still get his wish. The U.S. military retains the right to hold indefinitely those considered to pose a threat to the United States -- even those who have been cleared of charges at Guantanamo's "military commissions." [Emphasis added]

What an interesting new element in the military's arsenal: the right to hold anybody it considers a threat indefinitely. Such a right certainly fits in with the brave new world the Bush administration has brought us, a world in which habeas corpus and due process have been tossed out as unhelpful to the Global War On Terrorism and the US Constitution is seen as merely a quaint old piece of paper.

It was a nice democracy while we had it, though, wasn't it?

Attending To Details

Last Monday I posted (here) on an op-ed piece written by Morris D. Davis, the former Chief Prosecutor for the Office of Military Commissions, in which he explains the reasons he felt compelled to walk away from that job. Essentially, the reasons all boiled down to one: the prosecutions were being controlled by a political agenda that wanted convictions at any cost. More evidence of that agenda and its effect on military justice surfaced yesterday via an article in the Boston Globe:

The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted. ...

The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal.

Retired Major General Thomas Romig, the Army's top JAG from 2001 to 2005, called the proposal an attempt "to control the military JAGs" by sending a message that if they want to be promoted, they should be "team players" who "bow to their political masters on legal advice."...

The JAG rule would give new leverage over the JAGs to the Pentagon's general counsel, William "Jim" Haynes, who was appointed by President Bush. Haynes has been the Pentagon's point man in the disputes with the JAGs who disagreed with the administration's assertion that the president has the right to bypass the Geneva Conventions and other legal protections for wartime detainees. [Emphasis added]

Here's the problem. Lawyers have an obligation to do everything they can, ethically, to represent their clients. However, in addition to being advocates for their clients, lawyers are also officers of the court, which means they also have an obligation to the system of justice of which they are a part. When a prosecutor discovers, for example, that evidence has been obtained illegally, he or she is bound not to use the evidence, even if that makes acquittal likely. If a prosecutor comes across exculpatory evidence which shows that there is some likelihood that that the defendant is in fact innocent, he or she must share that evidence with the defendant.

Apparently these rules don't sit right with the current administration, and it is bound and determined to circumvent those rules in the pettiest way possible: by punishing those military lawyers who take their ethical responsibilities seriously. For this administration, winning at any cost is far more important than justice. But, then, why should this arena be any different than the others the administration has determined to destroy.

Why He Left

Morris D. Davis, the former chief prosecutor for the Office of Military Commissions, left his position as the man in charge of the military "trials" of Guantanamo Bay detainees rather abruptly and, at the time, issued a rather terse comment on his decision. In today's Los Angeles Times, Mr. Davis provides more detailed reasons for why he felt it was necessary to disassociate himself from the proceedings.

Essentially, Mr. Davis left because the process had become politicized and engineered to achieve a certain result. Unfortunately, that result was not justice, but rather the carefully engineered convicting of defendants. What is instructive about Mr. Davis' op-ed piece is that it shows just how this perversion of justice was accomplished through the appointment of two administration-friendly officials.

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the "convening authority" -- a title with no counterpart in civilian courts -- was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not predisposed for the prosecution or defense -- and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something -- use specific evidence to bring specific charges against a specific person at a specific time, for instance -- and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, "Trust me, you would have been impressed if only you could have seen what we did in the courtroom" will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical. [Emphasis added]

The final straw for Mr. Davis was another appointee, one who didn't pass muster for a federal court appointment, so he was given another slot, one that didn't require Senate confirmation:

Finally, I resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

Mr. Davis had already instructed his staff that no evidence obtained by water-boarding was to be used in their prosecution, yet now he was under the direction of someone who felt such techniques were perfectly all right. And so, Mr. Davis resigned, as any person with any conscience and with any sense of justice would.

What is being offered under the Military Commissions Act is not justice, it is itself criminal and antithetical to everything this nation is supposed to stand for. Morris Davis decided he wouldn't be complicit. For that he deserves our respect.

And for letting the public know just what is being done in our name, he also deserves our gratitude.

Strict Construction

The US Supreme Court will be hearing another Guantanamo Bay case in which the issue of habeas corpus and its suspension will be the focal point. We will see just how this court, packed by President Bush with conservatives, will deal with a right explicitly guaranteed by the US Constitution. Will this august body construe the Constitution strictly, as many have promised to do? This editorial in today's NY Times makes the case that it certainly should do so.

The fight over Guantánamo has been especially heated. The administration has made a variety of arguments for why the detainees have no habeas rights. Notably, it claimed that the naval base at Guantánamo Bay, Cuba, is outside the reach of American law. So far, the Supreme Court has rejected the administration’s arguments. It specifically ruled that the naval base is functionally part of the United States.

The issue today is whether, after the Supreme Court’s rulings, Congress succeeded in stripping the detainees of their habeas rights when it passed the Military Commissions Act. The act authorized military commissions to hear the detainees’ cases and set up a hollowed-out appeals process in the federal courts. At the same time, the act intended to strip the courts of jurisdiction to hear habeas petitions filed by the detainees.

The Supreme Court should rule that the detainees still have the right to habeas review. The Constitution’s framers put strict limits on Congress’s power to tamper with habeas corpus. The suspension clause says it cannot be suspended “unless, when in cases of rebellion or invasion, the public safety may require it.” Since there was neither, Congress had no right to suspend habeas rights, much less take them away permanently. [Emphasis added]

Exactly.

The Military Commissions Act (which, by the way, many Democrats in Congress voted for) was simply the administration's attempt at a do-over after the last slap on the wrists by the Supreme Court. It was a canny way to circumvent the federal courts which had shown startling animosity to the White House's little plan to detain, convict, and execute any and all currently being held at the US base in Cuba. However, as the editorial pointed out, the framers of the Constitution anticipated such an egregious power grab and specifically forbade such a move except under the direst of circumstances.

It doesn't take any kind of imaginative leap to understand what the Constitution says. Neither the president nor the Congress can subvert what the framers considered to be basic human rights in a free society. Now let's see if the Court can see through the terra!terra!terra! muck coming from the government long enough to construe the Constitution properly.

No Surprise Here

The war crimes trials of detainees at Guantanamo Bay are back on track, thanks to a decision by a newly designed military appeals court. From today's NY Times:

A special military appeals court, overturning a lower court ruling, on Monday removed a legal hurdle that has derailed war crime trials for detainees at Guantanámo Bay, Cuba.

The ruling allows military prosecutors to address a legal flaw that had ground the prosecutions to a halt. The decision, by a three-judge panel of a newly formed military appeals court, was an important victory for the government in its protracted efforts to begin prosecuting some of the 340 detainees at Guantánamo.

The legal flaw involved a requirement by Congress that before the detainees could be tried in military tribunals, they had to be formally declared “alien unlawful enemy combatants.” The problem for prosecutors was that while the detainees had been found by a military panel to be enemy combatants, they had not been specifically found to be unlawful.

Lawyers said there was legal uncertainly about whether the defense could appeal Monday’s ruling, which came in the case of Omar Ahmed Khadr, a Canadian detainee who was charged with killing an American soldier in a firefight and other crimes.

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.

Essentially the "appellate" ruling held that the trial judge had the power to hear evidence on the issue of whether the detainees were "unlawful" enemy combatants, i.e. were not in uniform or were carrying hidden weapons, necessary for the court's jurisdiction under the Military Commissions Act.

The question of further appeal is an interesting one. The military doesn't want the detainees to have the right of appealing to civilian courts, and the Act seems to imply that the detainees do not have that right. Otherwise, the existence of the new appeals division in the military system doesn't make much sense. The effect of such an interpretation is, of course, that for the detainees they have a kangaroo trial court and a kangaroo appellate court for redress. Period.

Mr. Edney pretty much summed up the box his client is in:

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.

Exactly.

Justice Delayed

Earlier this week, Ruth commented (here) on the extraordinary dismissal of two cases in Guantanamo Bay by commissioners who pointed out that the government had screwed up the pleadings by naming the defendants as "enemy combatants" rather than "unlawful enemy combatants" as required under the new-and-improved Military Commissions Act. The dismissals were, of course, quite correct. The gang-who-can't-shoot-straight apparently also can't draft pleadings worth a damn either.

Our neighbors to the North have a special interest in these proceedings, because one of those cases dismissed (for the second time) involves a Canadian citizen, Omar Khadr. A June 5, 2007 editorial in Toronto's The Star has more of the details on Mr. Khadr's case.

American prosecutors have had five years to put Khadr on trial for murder for throwing a grenade that killed U.S. Army medic Sgt. Christopher Speer in Afghanistan in 2002. At the time, Khadr was a 15-year-old Al Qaeda "child terrorist," prosecutors allege.

Twice, Khadr has been charged. Twice, the charges have been stayed.

Last year, the U.S. Supreme Court ruled the original "military commission" process Washington created to try Guantanamo detainees was unconstitutional, quashing the first set of charges.

And yesterday Col. Peter Brownback, presiding over Khadr's case, threw into chaos Washington's bid to get the commissions up and running again. He dismissed the reinstated charges against Khadr on a technicality. Brownback ruled, correctly, that the U.S. Congress empowered the commissions to try only "unlawful enemy combatants." But U.S. officials never did designate Khadr and 380 other detainees as "unlawful" combatants; they merely called them "enemy combatants." Strictly speaking, the commissions have no right to try them. That leaves U.S. prosecutors scrambling to get them redesignated. ...

This is legal anarchy. Washington appears determined to rewrite the rules until it manages to secure a conviction. ...

Even if Khadr is redesignated an "unlawful" combatant by some contorted retroactive legal wizardry, laying charges a third time will look like persecution, not justice. [Emphasis added]

It will look like "persecution, not justice" only because that is what it is. Well, that and an attempt to cover the backsides of an administration which at this point (fortunately) is simply incapable of dealing effectively with any kind of push-back challenge to its presumed total authority.

The editorial calls for the release of Mr. Khadr to Canadian authorities for the appropriate legal proceedings. While I doubt that the Bush administration would ever consider such a rational solution to the triple jeopardy issue now facing Mr. Khadr and three hundred other detainees in Guantanamo, at least Mr. Khadr would be subject to real, live due process. That is something he can't currently get from the United States.

How tragic is that?

Stopping the Constitution At The Border

It's been over thirty years since I took Constitutional Law, but I still remember the Reid v Covert case. The facts are pretty straightforward: Clarice Covert took an ax to her husband, then serving in the Air Force in Great Britain. She admitted the act and was tried, not by a jury of her peers, but by a Court Martial. It took two tries, but the US Supreme Court finally got it right and held that she was entitled to her Sixth Amendment rights even when tried outside the US.

A well-reasoned op-ed piece by Karl Raustiala (a law professor at UCLA) in today's Los Angeles Times suggests that the holding in Ms. Covert's case could easily be expanded.

Covert's case, which had the distinction of being ruled on twice by the U.S. Supreme Court, upheld for the first time the principle that the Bill of Rights reaches beyond U.S. borders. The court ruled that just because Covert was tried abroad, she didn't forfeit her 6th Amendment right to a jury — and, more broadly, that the government does not enjoy unchecked power simply because the trial of an American is held overseas.

...It is because of Reid vs. Covert that the Bush administration has not detained any U.S. citizens there.

Now, the debate is moving to the next level. While the government argues that the precedent applies only to Americans, and therefore that it is free to detain and try foreigners without the protections of the Bill of Rights as long as it does so outside U.S. territory, others argue that the principle should be expanded. To remain true to the larger meaning of Reid vs. Covert, they argue, the Bill of Rights should be applied to foreigners as well. The Bill of Rights should restrain the federal government when it acts overseas against foreigners, just as it already restrains the U.S. government when it tries aliens at home. This would send an important signal that the U.S. lives by its Constitution, a document that balances the executive, the judiciary and the legislature and rejects unfettered executive power. [Emphasis added]

This isn't as big a reach as the current administration and its supporters will claim, it's simply the other side of the constitutional coin: rights are guaranteed to individuals by checking the power of the government. The government must act within constitutional bounds when dealing with non citizens on American soil. Why should it not be required to act within those same constitutional bounds outside the borders?

Prof. Raustiala points specifically to those detainees being held at Guantanamo Bay (who are held there so that the government didn't have to deal with those pesky constitutional rules): he wouldn't go so far as to challenge a Military Commission law which was reasonbly drafted because, after all, "the laws of war" do apply. However, he suggests, US courts would still have the ability to review those trials to make certain they complied with constitutional requirements.

Prof. Raustiala's logic isn't all that tortured. It affirms that this was intended to be a nation of laws, a nation that respected and protected the rights of individuals.

Nicely done, sir.

What Wonders George Hath Wrought

Khalid Sheikh Mohammed has purportedly confessed to every serious crime of the last twenty years including 9/11. The confession was so wide ranging as to be ludicrous. Either the man is evil incarnate, or he's delusional with a desire for martyrdom, or, and this certainly possible, he confessed to whatever his captors wanted simply to stop the torture. While the US press hasn't done too much in the way of analysing the confession, members of the world press certainly have. Germany's Der Spiegel has a brief summary of what other German news outlets have to say about the confession.

The sweeping confession of alleged al-Qaida mastermind Khalid Sheikh Mohammed, who has claimed involvement in 31 terror plots, has been met with skepticism from German commentators. Some editorialists have stronger feelings about the "show" trial against Mohammed than whether or not he is telling the truth.

German commentators criticize the conditions under which the confession was obtained, noting that Mohammed had been subjected to years of "rough" interrogations at the hands of the CIA. Apart from condemning a hearing that did not adhere to the laws laid out in the United States constitution, along with a transcript that was heavily edited, German papers also cite allegations that Mohammed was tortured while held in custody as a suspected terrorist. Can his testimony be trusted or was he coerced into giving it? ...


The left-wing Die Tageszeitung denounces the Pentagon's actions as a "farce" and warns that the world will "never know" if the claims made by Mohammed are true:

"We don't even know if this 'hearing' in front of a military tribunal at Guantanamo ever even took place. Apart from members of the military -- whose names are crossed out in the transcript so that nobody can ask them any questions -- nobody was allowed to attend: no lawyer, no reporter, not even family members."

"Rightful justice cannot be obtained under the wrong conditions. The so-called confession is worthless, the upcoming trials are nothing more than show spectacles -- the only irony being that there won't be any audience. Indeed, the manner in which the USA deals with terror suspects has nothing to do with rule of law or seeking to establish the truth. This would require a proper defense, prison conditions which can be monitored and the right to appeal. And the suspect should be considered innocent until proven guilty in a court led by independent judges." [Emphasis added]

While it is painful to be lectured on the current debased state of the American ideals of justice by another nation's press, it is more painful to have to admit that the assessment provided by Die Tageszeitung is accurate. The "show trials" of Soviet-era Russia have re-emerged, this time under the auspices of our own government.

The question implicit in the analysis is clear: what are we going to do about this?

A good start would be to turn on those "klieg lights" Mr. Bush is so frightened of and to shine them directly on the architects of this abomination.

Somebody's Paying Attention

Yesterday, I posted on the Jose Padilla competency trial. Even with the appaling arguments made by the US prosecutors, the judge ruled that Mr. Padilla was competent to stand trial in the civilian courts. The NY Times weighed in with an editorial on the case as it stands right now.

There were so many reasons to be appalled by President Bush’s decision to detain people illegally and subject them to mental and physical abuse. The unfolding case of Jose Padilla reminds us of one of the most important: mistreating a prisoner makes it hard, if not impossible, for a real court to judge whether he has committed real crimes.

...That still leaves the far bigger question of whether Mr. Padilla was tortured, as he has claimed. For there to be a trial, Judge Cooke will have to rule that Mr. Padilla was not tortured, and she made a point of saying yesterday that her ruling on his competence was not a judgment on the torture claim. [Emphasis added]

In other words, the government is not off the hook yet in this case. The editorial concludes with one of the really tragic side-effects of this and other cases:

So far, this trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping to the very behavior it once stood against.

I think at this point, the term "suspicions" is a bit pallid. The head of the UN's Human Rights Commission went on record yesterday as deploring US policy on "detainees," according to an Associated Press report.

The U.N. human rights chief expressed concern Wednesday at recent U.S. legislative and judicial actions that she said leave hundreds of detainees without any way to challenge their indefinite imprisonment.

Louise Arbour referred to the Military Commissions Act approved by Congress last year and last month's federal appeals court ruling that Guantanamo Bay detainees cannot use the U.S. court system to challenge their detention.

What is significant here is that not only do we have an administration that is comfortable with denying even the most basic of human rights, that of the right to not be tortured and the right to challenge in court indefinite detention, we also had a Congress apparently comfortable enough with the administration's stance to codify that position.

And here is the stunner: Democrats in the last Congress were complicit, if only by their silence, in that bargain with the devil. Yes, the Supreme Court will have to rule on the Constitutionality of the Military Commissions Act, but, thanks again to the Democrats silence, our Supreme Court as it is currently constituted, may not rise to the occasion.

If that happens, that perfect storm, than all we have left is that great repository from which all powers in a democracy flows: We, the people...

Undoing the Unthinkable

The denial of the writ of habeas corpus to the US held detainees at Guantanamo Bay and other prisons outside of the US has outraged those of us who believe in the principles of basic human rights. Indefinite detentions smack of Stalinist gulags, not the purported beacon of liberty that the US has boastfully claimed for its role in the world for two centuries. On Wednesday, I noted a federal appeals court decision which upheld a provision of the Military Commissions Act allowing for the denial of habeas corpus to those non-citizens detained outside the US.

Canada had also passed a comparable law for open-ended detention, but, according to an article in today's NY Times, its highest court struck down that law.

Canada’s highest court on Friday unanimously struck down a law that allows the Canadian government to detain foreign-born terrorism suspects indefinitely using secret evidence and without charges while their deportations are being reviewed.

“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,” Chief Justice Beverley McLachlin wrote in the ruling. [Emphasis added]

Fundamental justice: the least that a civilized, democratic society can offer. Open-ended detentions, secret and unknowable charges, hidden evidence, none of this is acceptable in a "fair judicial process." How refreshing! The Chief Justice went further, however:

Much of the judgment provides a blueprint for Parliament on how to make security certificates fit with Canada’s charter of rights and freedoms. As part of that, one of the court’s suggestions seems to be adopted from Britain, whose legal system provided the basis of Canada’s. After the House of Lords struck down a similar law in 2004, Britain adopted a system that allows security-cleared lawyers to attend the hearings, review the evidence and represent the accused.

Hopefully the Canadian Parliament will do a better job of following the blueprint suggested in the decision than the US Congress did after the US Supreme Court issued its decision in the Hamdan case. We got the Military Commissions Act of 2006. Maybe Canada can show the US the proper way to proceed.

I certainly hope so. The NY Times article contains the following quote which suggests what should undergird any such bill:

Dalia Hashad, the United States program director for Amnesty International, said the Canadian decision should serve as “a wake-up call that reminds us that civilized people follow a simple and basic rule of law, that indefinite detention is under no circumstances acceptable.”