Saturday, March 1, 2008

News from Guantánamo

A roundup of what's up with cases arising out of Gitmo:
Gates v Bismullah
In an attempt to limit the information it must provide the D.C. Circuit Court when the court reviews an enemy combatant determination of a Guantanamo detainee under The Detainee Treatment Act, the government filed a petition for certiorari with the U.S. Supreme Court appealing the Circuit Court’s decision to deny rehearing en banc of its initial decision that the court must review all of the evidence regarding a detainee’s enemy combatant status and not just the evidence presented to the Combatant Status Review Tribunal as proposed by the government. After the denial, the government requested a stay of the court’s decision and filed the cert. petition, requesting SCOTUS to either accept the case with expedited review or defer action until the Court ruled on the Al Odah/Boumediene case, which has been pending since the Court heard oral arguments on December 5, 2007.
The Military Commissions
In the case of USA v Omar Khadr, the defense recently had several pre-trial motions denied by military judge Peter Brownback. Most significant was a motion to dismiss the charges and specifications on the grounds that the Military Commissions Act of 2006 is a Bill of Attainder -- prohibited by Art. I, § 9(3) of the U.S. Constitution -- for the reason that the Act essentially legislates punishment without trial. Judge Brownback disagreed, notwithstanding the fact the military commissions trials have been called a sham, rigged and unjust by defense JAG attorneys, and more recently characterized as ‘politicized’ by former military commissions prosecutor Colonel Morris "Moe" Davis. Davis, who quit the prosecutor's post a few months ago, has just announced that he will testify on behalf of a Gitmo detainee. Explaining his departure, Colonel Davis stated, “I concluded that full, fair and open trials were not possible under the current system.” And as posted, the Colonel reminded a couple weeks ago that Brigadier General Thomas Hartmann, legal adviser for the military commissions, refuses to rule out using evidence obtained by waterboarding.
In light of these circumstances, even the most hardened tough-on-crime conservative should be concerned about the recent swearing of charges against the ‘high-value six’ detainees, which includes Khalid Sheik Mohammed and Mohamed al Kahtani. The six are being charged with numerous crimes the government alleges are war crimes based in part on conduct that occurred well before 9/11. The government seeks the death penalty. Apparently, the government has already forgotten the decision of the Supreme Court in Hamdan, which holds that a precondition for a military tribunal’s exercise of jurisdiction is that ‘it is limited to trying offenses committed within the convening commanders field of command, within the theater of war and that the offense charged must have been committed during, not before or after the war.’
Now, I have no sympathy for terrorists and I am not opposed to military tribunals when imbued with due process. But how can anything good come of trying an individual in a ‘politicized’ ‘sham trial,’ for faux war crimes, on the basis of evidence procured by torture, in front of a tribunal that is all but ordered to obtain convictions, and then executing him?
Oh, and did I mention that such trials would be a gross violation of international law?

(photo from Camp Delta, Guantánamo Bay, courtesy of Center for Constitutional Rights)

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