John Gibbons: Mr. Tipton, I see you wear glasses.
Mr. Tipton: Yes I do.
John Gibbons: Could you show those glasses to the court, please? Okay, now were you wearing them that day?
Mr. Tipton: No.
John Gibbons: Uh huh. You see? You were fifty feet away, you made a positive eyewitness identification and-and-and-and-and-and-and YET, you were not wearing your necessary, prescription eye glasses.
Mr. Tipton: They're reading glasses.
John Gibbons: [after long pause] Um Mr., Um... Could you tell the court what color eyes the defendants have?
Mr. Tipton: [after quick glance] Brown and hazel green.
You remember John Gibbons don't you, boys and girls? He was played memorably by Austin Pendelton as the Gambini boys' bumbling first lawyer in My Cousin Vinny. Here's a picture of Pendelton, but it doesn't come close to capturing his clueless countenance in the movie:
Well, the prosecution team looks like Mr. Gibbons in its efforts to try Salim Hamdan before a military commission at Gitmo. After having its case dismissed initially because there had been no finding that Hamdam was an "alien unlawful enemy combatant," the prosecutors came back with a motion for reconsideration. Despite the fact that "alien unlawful enemy combatant" determinations are supposed to be made by a CSRT, the prosecution urges the military judge to make that determination himself. Here's the motion.
Marty Lederman--that's Professor Lederman to you, boys and girls--analyzes the motion over at Balkinization. And what a piece of work it is:
[M]ost importantly (it actually comes first in the motion -- p.3), the government sets out the facts from which Judge Allred is urged to make his own finding that Hamdan is an unlawful enemy combatant. The alleged facts are these:
Hamdan served as Bin Laden's personal driver and as a "member" of bin Laden's body guard detachment;
Hamdan "armed himself with a weapon";
Hamdan "was captured by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon."
It's not at all clear that such conduct described anything unlawful at the time it is alleged to have occurred. (Subsequent to the conduct, Congress passed a law making it unlawful to provide personal services to a terrorist organization; but I don't believe that was an operative crime at the time.)
More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefully and materially supported hostilities against the United States."
Here's the simple question the motion for reconsideration conspicuously fails to answer: What, exactly, is it that Hamdan is alleged to have done that proves he "purposefully and materially supported hostilities against the United States or its co-belligerents"? I don't know whether Hamdan did or did not do so. But if this is the best the government can do to make that case . . .
Remember, boys and girls, Hamdam is one of the big fish.
Spot says that no Common Article III consistent tribunal can ever convict most of the people we have locked up. Don't you suppose that the case was brought against Hamdan because it was one of the better ones? This is the real reason that the administration has fought so hard for its kangaroo courts.