Tuesday, June 05, 2007

Hoist on their own petard!

Ladies and gentlemen, we give you George W. Bush: the only man in the world who could screw up a kangaroo court. (Judge dismisses charges against detainee.)

Chris Floyd writing at Empire Burlesque, who continues:

The Bush Regime has invented so many new categories of bogeymen for its gulag that they've taken a pratfall on their own bullshit. Their case against the "boy terrorist," Omar Khadr -- who was just 15 years old when he was captured in Afghanistan -- collapsed within minutes today after a military judge said that Khadr's earlier classification as an "enemy combatant" (one of Bush's first attempts to put his captives beyond the rule of law) meant that he could not now be tried as an "alien unlawful enemy combatant" -- the latest designation hoked up by the Bushists in the tyrannical "Military Commissions Act" rubberstamped by Congress last year.

Guess what, boys and girls? It happened again later the same day, with a different judge and a decidedly bigger fish.

Just as in the Khadr case, in the Hamdan case yesterday, Judge Allred dismissed the charges for lack of jurisdiction.

These guys really are the Bad News Bears.

Hamdan? That name is familiar, Spotty.

As well it should be, grasshopper! Hamdan is the guy reputed to be Osama bin Laden's driver. He is also the Hamdan in Hamdan v. Rumsfeld, the recent Supreme Court case that held that the United States was bound by the Geneva Conventions—or parts of them anyway—in dealing with people detained in Afghanistan and Iraq. Both the "boy terrorist" and Hamdan were detained in Afghanistan and are presently cooling their heels in Guantanamo.

You will recall, boys and girls—oh, who is Spot kidding?—that prior to the Hamdan decision the Bush administration proposed to try detainees, and some of them for their lives, by administrative tribunals that the administration literally made up. The Hamdan court established, among other things, that detainees, regardless of status, were entitled to be tried by a statutory court and accorded at least minimal due process. Hamdan, in fact, conceded that a regularly-convened court martial under the Uniform Code of Military Justice could try him.

Why didn't they do that, Spotty?

Good question, grasshopper. Spot thinks it is because the administration wanted the flexibility to try and convict detainees when the evidence was thin or incompetent. Take Hamdan as an example. He was detained by our pals in the Northern Alliance and turned over to U.S. military authorities. Who is the witness against him? Spot doesn't believe there is any U.S. witness. And he bets there aren't any Northern Alliance witnesses, either. At least there were no reports of bearded men wearing turbans and carrying AK-47s, cooling their heels outside Hamdan's hearing room, and waiting to testify against him.

What is the evidence against Hamdan, Spotty?

As near as Spot can figure, statements were taken of the Northern Alliance members who turned Hamdan over to the U.S.

Rather than deal with all the troublesome details of a regular courts martial, including those nasty old rules of evidence, the administration proposed a brand-new beast: tribunals convened under the Military Commissions Act of 2006. It provided a way to try an unlawful alien enemy combant. Some legal experts warned that the MCA also violated the Geneva Conventions, especially Common Article III, but what the heck? Let's give it a whirl!

So they did. And this is what happened:

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- With one word - "unlawful" - the only two war-crimes trials against Guantanamo detainees fell apart in a single day, marking a stunning setback to Washington's attempts to try dozens of detainees in military court.

Two military judges dismissed charges Monday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and another who allegedly killed a U.S. soldier in Afghanistan.

Salim Ahmed Hamdan of Yemen and Omar Khadr, a Canadian who was 15 when he was arrested on an Afghan battlefield, were the only two of the roughly 380 prisoners at Guantanamo charged with crimes under a reconstituted military trial system.

Monday's rulings stand to complicate efforts by the United States to try other suspected al-Qaida and Taliban figures in military courts.

Defense attorneys and legal experts blamed the rush by Congress and President Bush last year to restore the war-crimes trials after the U.S. Supreme Court threw out the previous system, declaring it unconstitutional. In a remarkable coincidence, it was Hamdan's lawsuit that wound up in the Supreme Court.

In both of Monday's cases, the judges ruled that the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan previously had been identified by military panels here only as enemy combatants, lacking the critical "unlawful" designation.

"The fundamental problem is that the law was not carefully written," said Madeline Morris, a Duke University law professor. "It was rushed through in a flurry of political pressure from the White House ... and it is quite riddled with internal contradictions and anomalies."

No kidding, Professor Morris.

The thing is, when you have somebody locked away without any access to habeas corpus—also eliminated by the MCA—the government gets as many swings as it needs to get it right. Kind of like the T-ball Spot's pups used to play. Only they played T-ball better than the administration's clowns practice law.

But to Spot, the funniest part of this whole thing is the wounded bellowing of Brian De Palma, an impaired-driving defense lawyer and frequent commenter at Balkinization, who says it's just semantics. The liberal law professors at Balkinization drive Brian nuts. Brian, incidentally, is the only lawyer in America who has a bust of John Yoo in his office.

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