Boing, boing, boingWhile George dithers over the well-intentioned Baker-Hamilton report re Iraq (& killings there continue unabated), he can take heart with the news today (title bar) that a federal judge--a Clinton appointee & reportedly an advocate of civil rights--ruled in favor of the Administration by buying into the Justice Department's argument that the newly-passed MCA succeeds, after all, in stripping US courts of jurisdiction to hear appeals. That in spite of the fact that the MCA was not even enacted at the time (lawmaking after the fact) & that a host of retired judges submitted a friend of the court brief opposing its suspension of habeus corpus.
"A federal judge Wednesday
dismissed [ruling, PDF] a habeas corpus petition brought by Guantanamo detainee
Salim Hamdan [Trial Watch profile], finding it was clearly barred under the
controversial habeas-stripping language [JURIST report] of the new
Military Commissions Act (MCA) [text, PDF] even though it was pending at the time the Act was passed. Agreeing with a
position [JURIST report] on pending habeas petitions taken earlier this fall by the US Department of Justice, US District Judge James Robertson wrote in the first ruling to construe the MCA:
"'Hamdan's lengthy detention beyond American borders but within the jurisdictional authority of the United States is historically unique. Nevertheless, as the government argues in its reply brief, his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. Petitioner has never entered the United States and accordingly does not enjoy the 'implied protection' that accompanies presence on American soil. Guantanamo Bay, although under the control of the United States military, remains under 'the ultimate sovereignty of the Republic of Cuba.' Presence within the exclusive jurisdiction and control of the United States was enough for the Court to conclude in Rasul that the broad scope of the habeas statute covered Guantanamo Bay detainees, but the detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ...
"'Congress’s removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus.'
"In the context of his ruling Robertson left unaddressed Hamdan's general arguments that the Military Commissions Act is unconstitutional 'because it does not provide an adequate substitute for habeas review, because it violates the principle of separation of powers by instructing the courts to ignore the Supreme Court’s ruling that the Geneva Conventions afford judicially enforceable protections to petitioner Hamdan, because it is an unlawful Bill of Attainder, and because it violates Equal Protection."
DP's guess is that Robertson leaves it to the Supreme Court to consider those unaddressed arguments, if plaintiffs choose to press it that far, & we fervently hope that they will.
In a comment upon the MCA featured in the sidebar accompanying this report, Special Guest Columnist
Kathleen Duignan, "Executive Director of the National Institute of Military Justice, says that the Military Commissions Act of 2006 again puts US JAG officers in the awkward position of litigating the shortfalls of a military legal process that none of us would like to see our own service members tried under, and warrants amendment in the new Congress." She writes:
"After the Supreme Court decided Hamdan v. Rumsfeld in June 2006, academics, law of war experts, military justice practitioners, and everyday concerned citizens were eagerly awaiting Congressional action to cure the deficiencies in the previous system or sanction the use of courts-martial or civilian courts to try the fraction of those detained at Guantánamo awaiting trial. Instead, Congress acted politically. Instead of carefully deliberating and taking as much time as it needed to get the system right, Congress hastily created and passed The Military Commissions Act of 2006. Now that this bill has been signed by the President, the United States will once again breathe life back into another new system of justice created for the sole purpose of trying 10 men who were charged under the original commission system, as well as 14 high-value detainees recently transferred to Guantánamo immediately before Congress was pressed into action, and perhaps a grand total of 80 detainees altogether.
"An anonymous comment posted by a concerned reader of Professor Kermit Roosevelt’s fine op-ed piece entitled
Why Guantanamo, published in JURIST on October 5, 2006, noted that
'the U.S. deliberately selected Guantanamo as a prison site to evade U.S. law itself. . . and this clear intent needs to be kept in mind at all times.' This is an insightful way to view the issue.
Ironically, instead of using time-tested processes that have worked in the past, there was a compelling need to rush into creating a new system that seemed designed solely for the purpose of offering apparent justice, but in reality has to date offered nothing more than a bare minimum of process. Intent seems to be a good measure to evaluate our next steps in addressing the unresolved issue of how to apply the rule of law to alleged terrorists and co-conspirators worthy of facing criminal sanctions."
She goes on to quote a Department of Defense directive that lists the features of legal process by which the United States would consider that trials of our own military personnel abroad would be considered "fair:"
"Some of the listed guarantees we look for are that the criminal statute violated must set forth specific and definite standards of guilt; the accused shall not be prosecuted under an ex post facto law; the accused is entitled to be present at the trial; the accused is entitled to be confronted with hostile witnesses; the accused is entitled to have compulsory process for obtaining favorable witnesses; the use of evidence obtained through illegal means is prohibited; the accused shall be protected from the use of a confession obtained by torture, threats, violence, or the exertion of any improper influence; the accused is entitled to be tried without unreasonable (prejudicial) delay; the accused is entitled to be tried by an impartial court; and the accused is entitled to a public trial.”
...
"If these are the minimum standards we are willing to accept from other countries seeking to pass judgment on our service-members, does it not seem logical that we should then offer the same considerations in return to convince other nations that we are indeed a nation of laws and not of ideologues? Otherwise, it begs the question of what form of democracy we are fighting to preserve and whether we are a nation that upholds the rule of law ourselves."She asks in view of the fact that the U.S. justice system, both military & civilian, has long been adequate to deal these matters, "why [is the MCA] necessary? Is it true that we now do not trust our established system of justice to hold accountable those pending trial at Guantánamo Bay? What was the intent in spending valuable Congressional resources and tax dollars (not including the $125 million that could potentially be spent to build courtroom facilities in Guantánamo Bay) to create a new system from scratch, rather than either using the civilian courts that have been used to try the World Trade Center bombers of 1993 or our domestic terrorists, like Timothy McVeigh for his acts in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City? Another option would have been to mandate the use of courts-martial as would be used under the Geneva Conventions in a traditional conflict with prisoners of war. What differentiates these particular defendants in Guantánamo, especially the low-level footmen, from other more culpable terrorists that we have already successfully prosecuted in civilian courts? The conclusion the rest of the world sees is that the United States is not interested in true justice, but rather the appearance of justice. This seems to be a true loss for the United States in its ability to wield moral authority, as well as for those who defend the rule of law in the United States, and especially for those who are proud to wear the uniform of our country.
"If we are to apply the war metaphor for our current conflict, then it needs to be applied consistently. If terrorism is not merely criminal conduct, but has now risen to the definition of 'war,' then the laws of war need to be applied consistently. This is now a 'war' in which we have few allies and for which no end to hostilities is in sight. If alleged terrorists (which might not necessarily apply to all those held at Guantánamo) are to be tried, there is no reason they cannot be tried as other criminal terrorists in existing federal courts, like Timothy McVeigh in the Oklahoma City bombing in 1995 or Sheikh Omar Abdul-Rahman and nine others for the first attempt to blow up the World Trade Center in 1993.
"Or, if we stick with the war metaphor, then the prisoners are entitled to face general courts-martial under the laws of war and the Uniform Code of Military Justice.
Therefore, why have we hastily re-created another military commissions system to try these individuals five years after their initial capture? The observant reader who commented on the earlier article got the answer right. It all boils down to intent. And the question is whether that intent is to paint a thin veneer of respectability on a new substandard system, or to do justice to those worthy of punishment while upholding a nation of laws, avoid complete alienation of our allies, and ensure continued protection by the Geneva Conventions for our men and women serving overseas.
She also points out that, although the organization she represents endeavored to assist Congress in its efforts to draft the MCA, their efforts were spurned. The neocon GOP Congress (those of whom were up for reelection we just jettisoned) clearly placed hardcore & extreme ideology above centuries of development of military & civilian legal thought in service of self-aggrandizement & its hyper-aggressive conceptualization of the Neocon "New American Century."
But all is not lost--entirely, anyway.
"Following the election, there have been several proposed amendments to the Military Commissions Act of 2006 introduced into Congress. One that has received considerable attention was introduced by Senator Christopher J. Dodd of Connecticut. His amendment would restore the ability to challenge detention using the rights available under habeas corpus as well as to send appeals to the Court of Appeals for the Armed Forces, an already existing civilian court that is expert in military criminal matters. This is a step in the right direction.
"Otherwise, if the system is implemented as it exists in the current Military Commissions Act, we will have once again missed an opportunity to get it right. And our military JAG officers will once again be asked to make a half-baked system work. If nothing else, our JAG officers will get plenty of practice in litigating the shortfalls of a system that none of us would like to see our service members tried under, and they may once again be seated at counsel’s table in the Supreme Court of the United States. As Humphrey Bogart proverbially said in a famous movie set in war-torn Europe and Morocco, 'Play it again, Sam.'”
