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The New York Times has an amazing and disturbing article by Charlie Savage on the impeccable Brig. Gen. Mark S. Martins--chief prosecutor of the military commissions system who was handpicked to reboot the tribunals and give them legitimacy before the eyes of the world.

Like so many other military lawyers, however, Martins has reached the conclusion that the laws of war make this impossible. The same question continues to dog detainee cases:

Is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?
Putting that in more concrete terms,
If Iran someday shoots down an American pilot, could the Iranian military--citing Mahmoud Ahmadinejad--prosecute and execute him for an idiosyncratic war crime derived from Persian tradition rather than international law?
This creates two untenable, illegal possibilities that characterize the Gitmo quagmire: ignoring reciprocity consequences of prosecuting people for offenses not recognized as international war crimes vs. continuing extralegal indefinite detention without charge.

Next week is the pretrial hearing in the case against alleged 9/11 mastermind Khalid Shaikh Mohammed and four other Guantánamo detainees--and Martins is making increasingly public the question that has plagued all iterations of the commissions for the past decade: the applicability of the Geneva Conventions and other laws of war, torture and protections for defendants in tribunals.

If Martins had myopic tunnel vision, he'd adopt the rigid interpretation that a number of uniformed lawyers have taken, namely that the rules of warfare constrain government policies.

The problem, which Martins recognizes but Attorney General Holder does not, is that federal court judges have rejected the Justice Department’s argument that charges based on laws not in existence at the time of the detainee's actions cannot be recognized as international war crimes.

Specifically, in October 2012, a federal appeals court panel (all three judges were Republican appointees) threw out the terrorism conviction of a Salim Hamdan, Osama bin Laden’s driver and bodyguard, whose case led to a landmark 2006 Supreme Court ruling striking down the Bush administration’s first version of military commissions. The U.S. Court of Appeals for the District of Columbia Circuit held that the charge against Hamdan--providing "material support for terrorism"--was not a recognized international war crime at the time of his actions.

The Hamdan decision was a huge setback to the military commissions system, reducing the chances that many other detainees at Guantánamo could receive trials because 1) nearly all of the detainees were captured well before 2006 and 2) most of their cases suffer the same defect: detainees are being held over accusations for "conspiracy" or aiding Al Qaeda generally--things that are not international war crimes (as opposed to attacking civilians or planning a specific terrorist attack.)

As my colleague and former professor Eugene Fidell aptly notes, Decisions about prosecuting detainees have become about what is feasible as opposed to what is rational. The constraints imposed by Congress are forcing officials into contorted positions which are particularly uncomfortable for military lawyers, who don’t want to get near the "third rail" of destroying reciprocity. Unfortunately, we are now in yet another Gitmo conundrum: paying attention to the reciprocity consequences of how other countries in ongoing conflicts and future wars treat captured Americans, creates and equally untenable reality: indefinite detention with no judicial review.

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Comment Preferences

  •  Gitmo (17+ / 0-)

    The gift that keeps on giving.

    Hobbs: "How come we play war and not peace?" Calvin: "Too few role models."

    by BOHICA on Sun Jan 27, 2013 at 06:37:34 AM PST

  •  Is the USA part of the international community? (26+ / 0-)

    Or do we make up our own laws?

    We seem to be able to use the law to prosecute whistle blowers, when they violate the rule of making public what the CIA and other agencies are doing.

    What does the quaint expression "the rule of law" mean these days?

    Socrates: First, shouldn't we explain how a democracy becomes an oligarchy?

    Adiemantus: Yes.

    Socrates: The crucial step is that the rich figure out how to manipulate politics so the laws benefit them instead of the public.

    Adiemantus: So it seems.

    From Plato, Republic, 550d (author's translation) In the book Worse Than You Think by Keith Quincy.
  •  All just a bunch of pretty words (16+ / 0-)

         
    Jimmy Carter

    "The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.”

    Thomas Jefferson,

    “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure”

    “If once the people become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions.”

    Judge Learned Hand

          “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”

    And a favorite of mine,

          “If we are to keep democracy, there must be a commandment: Thou shalt not ration justice”

    A standing army is like a standing member. It's an excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure. Elbridge Gerry - Constitutional Convention (1787)

    by No Exit on Sun Jan 27, 2013 at 07:09:56 AM PST

    •  I am missing Jimmy Carter (4+ / 0-)
      Recommended by:
      No Exit, Don midwest, NonnyO, mrkvica

      a lot these days.

      Jimmy Carter.....

      "The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries.

      In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.”

      "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

      by allenjo on Sun Jan 27, 2013 at 09:48:34 AM PST

      [ Parent ]

  •  It seems strange that the validity of our (3+ / 0-)

    laws keeps having to be tested by aliens.

    I wonder if our consent to having the state put people to death has something to do with it. Or perhaps, our fixation on death innures us to abuse, a lesser/included offense, which is, when you come right down to it, worse than death, even as there is hope for relief.

    We organize governments to deliver services and prevent abuse.

    by hannah on Sun Jan 27, 2013 at 07:19:53 AM PST

  •  Our Constitution is twisted into a Möbius strip. (13+ / 0-)

    Torture = enhanced interrogation techniques
    Retroactive legalization of wire tapping
    Enemy combatant indefinite detention
    Drone extrajudicial killing

    Crime and punishment has been turned inside out.

    The government targets heroic citizens who blow the whistle or protest crimes of waste, fraud, and abuse, hunting for charges for which to punish the dogooder with bankruptcy and maximum sentencing.

    They ignore monumental wrongdoing of banksters and war criminals, who have caused pain and suffering to millions of people, then reward them with medals and lucrative jobs.

    Information is the currency of democracy. ~Thomas Jefferson

    by CIndyCasella on Sun Jan 27, 2013 at 08:01:10 AM PST

    •  If we did not have a constitutional law professor (3+ / 0-)
      Recommended by:
      NonnyO, CIndyCasella, mrkvica

      as president, we could really be in trouble.

      Crime and punishment has been turned inside out.

      The government targets heroic citizens who blow the whistle or protest crimes of waste, fraud, and abuse, hunting for charges for which to punish the dogooder with bankruptcy and maximum sentencing.

      They ignore monumental wrongdoing of banksters and war criminals, who have caused pain and suffering to millions of people, then reward them with medals and lucrative jobs.

      "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

      by allenjo on Sun Jan 27, 2013 at 09:51:18 AM PST

      [ Parent ]

  •  government secrecy at new levels (12+ / 0-)

    the last two paragraphs of an article that chronicles the security state's efforts to hide what it is doing

    This Obama whistleblower war has nothing to do with national security. It has nothing to do with punishing those who harm the country with espionage or treason.
    It has everything to do with destroying those who expose high-level government wrongdoing. It is particularly devoted to preserving the government's ability to abuse its power in secret by intimidating and deterring future acts of whistleblowing and impeding investigative journalism. This Obama whistleblower war continues to escalate because it triggers no objections from Republicans (who always adore government secrecy) or Democrats (who always adore what Obama does), but most of all because it triggers so few objections from media outlets, which - at least in theory - suffer the most from what is being done.
    Glenn Greenwald's new article

    Kiriakou and Stuxnet: the danger of the still-escalating Obama whistleblower war
    The only official punished for the illegal NSA program was the one who discussed it. The same is now true of torture

    http://www.guardian.co.uk/...

  •  How can they have military tribunals... (3+ / 0-)
    Recommended by:
    Simplify, mrkvica, 2020adam

    ... when the "al Quaida" individuals are only members of a large gang of criminals with no country?

    That is the part that has had me baffled.  The language of "war" has been mangled into a civilian blurring of the lines.

    Al Quaida has never been anything other than a group of disaffected religious fanatics using criminal activities ['terrorist tactics'] to wage their idea of "war" against anyone they deemed immoral.  They were never part of any country's military force.  They do not represent any country; they only represent themselves.  [As of a couple of years ago when Christiane Amanpour interviewed a military muckety muck, she asked how many Al Quaida members were still left in the world, and finally got him to commit to a number: "fewer than 100."]

    Horrendous as 9/11 was, 19 men using only boxcutters (!) hijacked four planes which they then used to murder nearly 3000 people, and commit suicide in the process.

    Strip away more than a decade of outright extreme hyperbole and taking things to the elementary basics:  Had they "magically" lived through the devastation of 9/11, the 19 men would have been charged with hijacking planes (a felony) and murders (more felonies).  They could never have been charged with war crimes because it is illogical to charge criminal gang members with war crimes; they committed a criminal attack of devastating proportions, but since they represented no one but themselves, it was not an "act of war" in anyone's mind except Dumbya's and Dickie's.  No countries were involved and a criminal gang made up of delusional religious fanatics does not constitute any force with which a country can have a legitimate war.  Indeed, the countries of origin of the 19 hijackers did not want them, so they were, in effect, men without a country.

    That leaves a whole open no-man's land into which MCA '06 and MCA '09 [shame on the Obama administration!] were introduced.  Parts of the former have already been declared unconstitutional, even by this nuttiest group of SCOTUS justices who do stupidly illogical things like grant corporations personhood status and grant corporations' money the privilege of 'free speech,' not to mention the latest illogical outrage with their opinion regarding forcing us to pay fines and/or premiums to private corporations for health insurance.

    Still, the point remains:  9/11 was a monstrous criminal act, not an act of war, and the individuals at Gitmo should never have been tortured and can't be tried under military rules of war since one can't have a valid war against a gang of fanatic criminals who do not represent any country and are not a political force within any country, even if they are a monstrous criminal threat.

    If the office of president of the US is really that strong, he should be able to pick up the phone, talk to the leaders of the countries of origin of each criminal and tell the leaders of any country "We're flying your citizens home to you with our apologies for torturing them."  The fate of each man then rests with the leaders of those countries.

    I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

    by NonnyO on Sun Jan 27, 2013 at 12:17:42 PM PST

    •  great comment. n/t (1+ / 0-)
      Recommended by:
      NonnyO
      •  Thank you, mrkvica - (1+ / 0-)
        Recommended by:
        2020adam

        The frenzied hyperbolic warmongering over what was essentially a monstrous criminal act to gin up everyone for a war has always mystified me.  Or, more precisely, why so many bought into the rhetoric, from "serious" news writers to ordinary people on the street..., and all not even a year after Dumbya, the most incredibly stupid man possible in the US and the most detested man on the planet whom "the powers that be" installed in the office (and why did Al Gore and John Kerry back away so quietly in abject defeat and not stand up on behalf of the people who voted for them?).

        Dumbya became "untouchable."  No impeachment proceedings, no investigations into his lies and war crimes.  Why?!?  The fact that he stayed in office for two terms (and now Obama is still carrying out the same policies per the Patriot Act, MCA '06, amended by Obama's MCA '09, still extends the FISA fiasco '08, keeps open the 'office of faith-based initiatives' created by Dumbya with an executive order..., and it seems Obama has bought into the meme of 'fixing Social Security' by putting our funds in the stock market, even after we had to bail out financial institutions to keep this country running) lends credence to the CT that a power stronger than the president has control of our elected officials... namely PNAC (web site) --- PNAC (Wiki page) or whatever new name they've become.

        I did a double-take when I saw Madeleine Albright's name as a signatory for the Statement of Principles several years ago on the PNAC web site; I notice her name has now been quietly removed (knowing it was there made me lose a whole lot of respect for her).  Most baffling of all, Democratic senators and reps who vote in favor of insanely stupid legislation that takes away our rights seem like they're all running scared (Harry Reid backing off on filibuster regulations is the latest idiocy) even as they give us the lamest excuses possible for voting in favor of not only extending the illegal and unconstitutional laws, but funding the two illegal and unconstitutional wars and giving corporations whatever they want and allowing them to write the legislation ("health insurance" we're forced to buy from corporations is only one of the biggest outrages on top of corporations that received record-setting profits from the Bushista wars and our rights that have not been officially restored).  Even the financial meltdown was started with a beloved Democratic president when Bill Clinton signed Gramm-Leach-Bliley which repealed Glass-Steagall which then led to the 'too big to fail' institutions our Congress Critters voted in favor of bailing out and nothing has replaced the Glass-Steagall regulations yet, so those same institutions are continuing their monetary grab.  Why?!?

        I'm normally a "just the facts, ma'am" person 'cuz (in my younger adult years) I have a law enforcement background that necessitated only cold hard facts and zero speculation, but the events of the last 13 years have given me reason to pause and wonder.  Curiouser and curiouser....

        I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

        by NonnyO on Sun Jan 27, 2013 at 10:30:40 PM PST

        [ Parent ]

        •  Sorry that I saw this too late to rec. (0+ / 0-)

          You have a lot more detailed knowledge about how it all went down than me, but WHY has been my question too from just observing the events and our insane reactions to them. Seeing how so many of us knew better all along, how did the reason get so completely steamrolled? Through everything that you mention. And look where we are now, all our problems are so much WORSE.
          I am aware of what preceded Clinton and how bad that was, but yes, the seeds of a few startling additions to our problems got started during Clinton, another big one being the media consolidation.  Why would anyone think that was a good idea?
          Currently I don't see evidence that we humans, as a whole, are sane. Maybe there are some pockets that quietly live their lives well, that we don't get to hear about. Unfortunately the rest of us are going to screw those people over too. Everything is much too strongly connected these days.

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