House of Eratosthenes

The Bush administration’s plans to bring detainees at Guantánamo Bay to trial were thrown into chaos yesterday when military judges threw out all charges against a detainee held there since he was 15 and dismissed charges against another detainee who chauffeured Osama bin Laden.
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In back-to-back arraignments for the Canadian Omar Khadr and Salim Ahmed Hamdan, a Yemeni national, the US military’s cases against the alleged al-Qaida figures were dismissed because, the judges said, the government had failed to establish jurisdiction.

That’s right, the government didn’t establish jurisdiction. It’s like my liberals keep telling me…the Constitution is stronger, for the benefit of us all, when it is used to safeguard the rights of the least among us.

I guess.

So who is this guy anyway?

Khadr’s father moved his family to Afghanistan, where they lived in Osama bin Laden’s compound, and played with bin Laden’s children. Khadr’s father has been described as one of bin Laden’s senior lieutenants.

Omar’s older brother Abdurahman Khadr described being sent to military training camps shortly after his arrival, when he was just eleven years old. All of the Khadr boys are believed to have military training while they were children.
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On July 27, 2002, 15-year-old Khadr was in a compound near Khost that was surrounded by US special forces.
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Most press accounts of the skirmish say that Khadr killed a “medic”, implying that he had attacked a noncombatant after giving his surrender, but although Sgt. Christopher Speer had been trained as a medic, he was actually leading the squad combing the compound after they believed all occupants had been killed.

Khadr leapt from hiding and threw a grenade, which injured Sgt. Speer and led to his death, and injured three other members of the squad. Omar was shot three times, and left nearly blind in one eye. He was subsequently treated and his life was saved by U.S. medics.

Oh…kay…so why are we throwing the case out again?

At issue, according to [Judge Peter] Brownback, was a 2004 finding by a so-called Combatant Status Review Tribunal that declared Khadr an “enemy combatant.”

The process was designed by the Pentagon to substitute a military review panel for civilian courts after the U.S. Supreme Court ruled in Rasul vs. Bush in 2004 that Guantánamo detainees have the right to contest their detention.

Congress then stepped in to create the 2006 Military Commissions Act after a U.S. Supreme Court decision ruled an early military commissions format unconstitutional.

But the so-called MCA, signed into law by President Bush, said only ”unlawful enemy combatants” could be brought before the special war court.

The distinction and technical language has evolved across the five years the United States has been detaining and classifying war-on-terror captives — and shuttling them here via an 8,000-mile air bridge from Afghanistan.

In short, an ”unlawful enemy combatant” has no right to be on the battlefield while a ”lawful enemy combatant” may have the power to engage in warfare.

All right, I think I’m seeing the picture. Let’s narrate it in the most cool-headed, centrist, objective way we can.

We got here, in the parlance of old, a “bad guy.” Remember those, right? A guy the good guys are fighting. No argument there…he’s playing with bin Laden’s kids, getting military training with al Qaeda, throwing grenades at our guys and killing ’em dead. So he’s this bad guy. He mortally wounds Sgt. Christopher Speer, and Speer’s comrades shoot him up, then treat him for his wounds. He’d a-killed them…but once they had him in custody, they treated his wounds. Seems pretty clear who’s wearing the white hat and who’s wearing the black hat here. So with apologies to Sen. Kerry and all my “nuanced” liberal friends…we got good guys here, and we got bad guys here. Or one bad guy.

Bad guy gets captured.

Lawyers say…hey. Bad guys in Guantanamo can contest their detention. Bush administration says, fair enough. We’ll go by the precedent that was created by President Roosevelt during WWII. Enemy combatants. Legalistic term for bad guy. He fits, right? He killed one of ours. He’s a combatant…he’s an enemy. We’ll try the bad guy in a military tribunal.

Supreme Court declares the early military commissions unconstitutional, and so in response Congress passes the Military Commissions Act. This addresses the earlier unconstitutionalities, somehow, using the term unlawful enemy combatant. So I guess, not only is he a bad guy but he’s an illegal bad guy.

Yeah. Not only is he killing our good guys, but he’s breaking the law doing it.

Except — he was never classified that way. So the court, here, is saying the MCA doesn’t apply to him, because he’s an enemy combatant — not an unlawful enemy combatant.

Court’s not saying he’s lawful, mind you. It’s a procedural issue. A clerical boo-boo. The peg was put in a square hole instead of a round one, so we have to throw everything out and start again.

See what’s happening here?

Let’s put it all in historical context. Look up Marbury vs. Madison, and read top to bottom. Everyone who follows stuff dealing with the word “unconstitutional,” should do exactly that.

This is the decision in which the Supreme Court invested itself with the authority to declare things unconstitutional. Except — it didn’t do that. Read the decision. Up until six-tenths of the way through, the decision argues forcefully that the plaintiff is owed a remedy. Only after that point, are the constitutional implications considered. And in considering those, Chief Justice John Marshall finds his Court to have derived such authority for remedy, from a law that is utterly, irreconcilably incompatible with the Constitution.

And interestingly, he doesn’t cite anything in the Constitution that says “you can’t do this”; he simply cites an absence of any constitutional passage that says you can. But that’s an argument for another day.

Now fast forward to June of 2007. This is different from what was done in 1803.

This is “Gotcha!” jurisprudence. It is a practice of scanning the case, top to bottom, and looking for an excuse to fold. Finding some flimsy justification somewhere for yelling “Yabba dabba doo!” and packing it in and going home. Rationalizing. With precedent, or without it…find a reason why we must stop, turn ’round and go back. Invent new rules, if that’s what it takes.

Of course, highly observant legal minds could point out the same was true of the Marbury decision. It was a political maneuver, after all. Some might even say a cynical ploy in the feuding between Marshall’s Federalists and President Jefferson’s Democratic-Republicans. And this would be a good point. But the decisions are still substantially different.

Marshall had to spend a few paragraphs showing why it was that awarding the Writ of Mandamus was absolutely, intolerably, incompatible with the Constitution. How, even under the best of circumstances, awarding the remedy he had determined to be proper, would violate even the most forgiving interpretation of the charter he had sworn to uphold. In fact, if you read the text, he shows himself to be beholden to two laws that directly contradict each other — placing himself in the position of being forced to break one or the other. He then illustrates the absurdity of violating the greater law, for the purpose of observing his fidelity to the lesser one.

In other words…it’s plain, old-fashioned logic.

That isn’t what’s happening now. This latest decision is an exercise of looking for excuses. What logic is involved? Bad guy…legal bad guy…illegal bad guy. The commission only has authority to try bad guys, who don’t have the right to be bad guys, and this guy does have the right to be a bad guy, so we bring everything to a stop?

I’m glad Luke Skywalker didn’t have to worry about this legal jockeying when he was blowing up the Death Star. In fact, I would have to say with this decision, the whole notion of law and order has been completely demolished. Imagine. Someone’s a bad guy…but before we can do anything we have to cogitate on whether he has the right to be a bad guy, or not. We got processes for dealing with legal bad guys, and other processes for dealing with illegal bad guys. Don’t go getting in the wrong line, now.

The issue is consequences. We have a system of justice, because we’re worried about consequences — if you can do bad things and get away with it, you’ll probably keep doing the bad things and others will learn from your example. With our system of justice in place, we have oversight because we’re worried about more consequences. You arrest people without cause, hold them without a trial, refuse to recognize their constitutional protections, what’s to stop you from doing the same to everybody else?

Consequences. Our entire legal system is based on worries about consequences. The enforcement, the legislation, the judicial oversight. It’s all about the consequences.

What are the consequences of dealing with people who want to kill us, as if each of them represented some strange, pain-in-the-ass red-tape exercise at the DMV? Take a number, and…well, no two of our bureaucrat desk clerks can agree on what line you’re supposed to get in. Maybe you have to renew this registration by mail. We’re not sure. Did you know you can make an appointment online? But how to get this thing done-done…well, nobody’s sure. We all just work here. Take a number. Have a seat.

What’re the consequences of THAT?

I think everyone would agree, our country has “enemies” in the sense that there are people we’re trying to neutralize, before they neutralize us. I think everyone would have to agree with that — and if not, then some pictures from 9/11/01 should help them see the error of their ways. Well, I don’t think those other guys are confused about what line to put us in.

And here we are obsessed with legal bad guys versus illegal bad guys.

Our system understands procedures; it’s a little foggy on the concept of threats. Time for an overhaul.

So does dismissing the case mean he gets to go free, or does it mean that it’s not a legal case anymore, he’s just a POW since he’s not “illegal”.

Or are we not allowed to have POW’s anymore?

If we are, do we have to prove each and every POW is, in fact, a POW?

This could make wars extremely hard for us to win. No wonder Al Queda is so confident.
- philmon | 06/05/2007 @ 10:26
The Miami Herald story indicates the case was dismissed “without prejudice” and this means the government can bring more charges.

I do not know if this means he remains in custody for the time being and this simply addresses double-jeopardy issues, or if it means he actually gets to go free until the next time we catch him.

The other fellow, bin Laden’s driver, I thought I read somewhere he gets to walk away free. Will try to verify that.

It seems in a free society, where our press works for us, this shouldn’t take so much effort. But our editors don’t seem to feel it’s a distinction worth highlighting.
- mkfreeberg | 06/05/2007 @ 10:34
I don’t think they get released – just reclassified… 🙂

You knocked this one out of the park, buddy. Great post!
- Daniel | 06/05/2007 @ 22:47
Solar_protection…

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- Augusta Ada King, Countess of Lovelace | 07/23/2007 @ 15:00

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