Moon of Alabama Brecht quote
June 04, 2007

Once Illegal, Always Illegal

It always was inherent injustice to classify those who fought the U.S. troops in Afghanistan as something else than prisoner of wars or simple criminal civilians under the Geneva convention.

To cover up that basic injustice a pseudo-legal system was developed around military tribunal. The U.S. Supreme Court declared that system to be illegal.

The U.S. military came up with a new system legislated by Congress in the Military Commissions Act. That new system today received a probably letal blow.

Under the new act, the prisoners in Guantanamo Bay have to be classified by some Combatant Status Review Tribunals, a military panel. The panel has found some prisoners to be "enemy combatants." These are to be arrained in a court of military commissions.

Today the case of the now 20 year old Canadian Omar Khadr was on trial. After five minutes, the judge threw the case out. According to the law only "alien unlawful enemy combatant" can be judged by the court.

But the defendent was not classified as such. He was only classified as "enemy combatant." Indeed nobody has ever been classified as "alien unlawful enemy combatant."

This is a catch22. The status review tribunals are not courts. How could they judge that someone is "unlawful?" But the court can, by law, only judge about "alien unlawful enemy combatants." The court had to throw the case out because it has no mandate and right to judge the defendent.

The prosecutors now have 72 hours to appeal today's decision. But unfortunate for them - the appeal court does not yet exist and is unlikely to be set up soon.

To justify the basic legal injustice, laws were bend, new illegal laws enacted and kangaroo courts were created. Now one of these courts itself had to acknowledge that the systematic illegality contradicts itself.

A good fundament is the best base for a reasonable foundation. The legal house build in Guantanamo has none of it. Today it collapsed.

Let's hope that now, finally, someone will say 'nough is 'nough and shut this sham of legality and Guantanamo Bay down.

Posted by b on June 4, 2007 at 20:24 UTC | Permalink


They'll be shipped to Bagram, Abu Ghraib or subcontracted to Jordan and Egypt if Gitmo gets a closure order.

Posted by: Cloned Poster | Jun 4 2007 20:44 utc | 1

jurisprudence as a joke.

a long, sordid & cruel joke, without humour

only tragedy

Posted by: remembereringgiap | Jun 4 2007 22:08 utc | 2

One of Laura Rozens readers has an interesting comment on this judgement:

Reader JR, an Air Force veteran, comments, "This subtle but profound ruling constitutes a revolt by career military officers, especially military lawyers, who have previously compromised their integrity and oath of office to support a President and Administration who lied and violated US and international law to take the nation to war and keep it mired there for years. Note that the courageous ruling is by an Army colonel and the implications quote a Marine colonel -- two officers at the end of their careers who have nothing to lose by placing institutional integrity ahead of loyalty to a commander-in-chief who has none. Sadly, the generals and admirals who should have made such stands over the last five+ years sat mute."

Posted by: b | Jun 4 2007 23:08 utc | 3

I'm w/cloned poster. This may piss some of you off, but hear me out.

I personally, have found the last 6/7 years to quite refreshing in some ways, and not as crazy making as before this Bush II era. The reason being is because these elite fucks have given up on hiding and shielding their neurosis of power.

They have done what they have done mostly out in the open. Blatant and bold disregard for 'the people', --any people-- for the constitution, the Law, education, human rights, the environment, the hungry (poor) etc..

They have done no worse (for those whom look) than other administrations, "leaders" and other elites who run this republic and influence the world (Democrats included) sorry. In that, they haven't hidden their abject contempt for the masses. Power, Paranoia and presidential tyranny has been with us a long time. It didn't start with Jr. Democracy in America has been bankrupt for a long time. Long before the boy king.

Again, I personally like my tyranny and it's symptoms racism, bigotry, and power relations out in the open where I can see it. Plato defined disorder in the world of tyranny as polypragmosyne, the seizing of power by those who presume they possess wisdom in all things.

America has reached the backside of the event horizon of organized, institutionalized corruption and fraud on every level. Where protection rackets, embezzlement, larceny, confiscation, entrapment, misappropriation, and rico crimes, as well as murder have become the norm; by bullies, fraudsters, pervert soul sick class elites, politicians with their sykophants*, lobbys, lawyers of the Kelptomania class who run everything. A litigation nation where truth is treason, justice is a mockery, and liberty is for sale to the highest bidder, where action of the State, arising from suspicion and not from proof, has degenerated into the satisfaction of vendettas by a "coin-operated congress", a "blue-blooded-aristocratic Senate" and finally, a power hungry blood thirsty executive branch- a general system of tyranny, all in the name of "public safety."

The general public means nothing to them, we have been and are being, carved out like a pumpkin, the seeds spit in our faces, while they laugh at our poverty. "The essential political choice is the same as it always was: "freedom or security" nor, is the blame entirely with the warmongers, plutocrats, and demagogues.

If a people permit exploitation and regimentation in any name they deserve their slavery. The law has always been perverted to serve the "haves" and not the "haves-not", only not always as heavy handed as it is now. We have made progress in the recent past with "the New Deal", labor unions, civil rights, and the constitution. Only within the last few decades have the ruling elites pushed back, with their hatred of liberal democracy. What once existied in ancient Athens - now hold sway in America and Britain , (it's transatlantic and trans-national now ) where powerful and corrupt individuals, organizations and corporations are routinely using threats of vexatious and malicious litigation to bully and oppress ordinary innocent and working class people. If democracy requires that power be distributed in a system of checks and balances to prevent the tyranny of any one power held in a single hand or body then that may be new, but these things have gone on for decades behind closed doors and mostly hidden and unspoken in polite company.

Coercion seems to be covering-up greater crimes committed by these individuals / organizations. Their corrupt misuse of Law takes the form of restraint of trade and prevention of free speech, eminent domain, tax cuts for the top 1%, hidden fiat/poll-taxes, money laundering in off shore bankings and usury interests and loans. All nothing more than hypocrisy, hiding behind law.

I'm sure you could come up with hundreds of other examples but make no mistake, "the Class War" has shifted and started a dramatic new phase of Supernova proportions with The Rise of Rove's Republic. And the one thing that todays "New America" has in common is the elite stranglehold on Politics, medicine, law, policing, media, bureaucracy etc. where, they are all "self-regulating". Further, and not so coincidentally, all these 'trades' tend, more or less, to control their own incomes at the top levels. [i.e. the fat cats decide their own].

So yes, I would rather these things be out in the open, so as not to be blind-sided by them. The things that this crew has done are what this government has always done, with a relatively few new exceptions.

Take arrows in your forehead, but never in your back.~ Samurai maxim

Posted by: Uncle $cam | Jun 4 2007 23:24 utc | 4

Spot on, Uncle, and to a tee. The biggest mistake of the Bush group was letting the curtains fall for all to see. The Wizard of Oz is one because, because.....

Posted by: Allen/Vancouver | Jun 5 2007 1:53 utc | 5

Charges against Bin Laden's driver also dismissed -- thrown out on the same grounds.

In back-to-back arraignments for Canadian Omar Khadr and Salim Ahmed Hamdan, of Yemen, the U.S. military's cases against the alleged al-Qaida figures dissolved because, the two judges said, the government had failed to establish jurisdiction.

They were the only two of the roughly 380 prisoners at Guantanamo charged with crimes, and the rulings stand to complicate efforts by the United States to try other suspected al-Qaida and Taliban figures in military courts.

Posted by: Bea | Jun 5 2007 2:30 utc | 6

Looking through the reverse binoculars of the wayback machine,
MoA's consistently pontificate on the Bushido memes, laugh at
every false turn Cheney's Halliban have taken, and are quick
to shout, "That's it, the final note of the fat lady's song!",
(in the same way trolls shout, "First!" on the comments line.)

Only the Rovian Reich's Thousand Year Opera is just beginning.

1 Corinthians 13:12 contains the phrase
βλεπομεν γαρ αρτι δι εσοπτρου εν αινιγματι
rendered and metastasized by Rove-speak into,
"For now we lurch through the charnel house, darkly."

Without faith, hope and charity, MoA's are just Heckle's and
Jeckle's, sitting on a telephone line as dove season starts.
Kos has it right. Put your money where your mouth is, or die.
8,000,000 people are out of work and 1,000,000 are in prison.

Posted by: Pair Annoya | Jun 5 2007 3:30 utc | 7

An interesting point in today's NYT article about the issue:

A Pentagon statement said: “We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures.”

But Mr. Specter said it was “dead wrong” to assert that Congress intended to permit prosecution of detainees who had not been declared unlawful enemy combatants.

The Pentagon planned to appeal the decisicion on the ground that Congress did mean to prosecute not only "unlawful enemy combatants" but also "enemy combatants" (The distinguishing of such is a legal term within the Geneva convention framework.)

Sen. Specter within hours shot the argument down by declaring that Congress certainly intended to distinguished. Any appeal kangaroo court will have a hard time now to follow the Pentagon argument against the explicite declaration of the guy who wrote the law.

Posted by: b | Jun 5 2007 6:01 utc | 8

Prof Balkin saz

What this episode reveals is not that the Administration won't ultimately be able to try these detainees as unlawful enemy combatants. What it shows is the Administration's continuing incompetence in dealing with the Guantanamo situation. After the Supreme Court's Hamdan decision held that the Administration's first attempt at creating military commissions was illegal, the President went to Congress and asked for vast new powers and enormous discretion. The Republican majority in Congress, eager to run on the War on Terror in the 2006 elections, gave all this to him, and more. And yet, even with all these new powers and all this discretion, the Administration has screwed up the second group of tribunals it designed. I would say this is a disgrace, except that the Military Commissions Act which sets up the new tribunals is the true disgrace. This latest episode is a carbuncle on a wart on a disgrace.

Posted by: b | Jun 5 2007 12:21 utc | 9

What is odd is why prosecution went ahead for these two in the first place - could it be that the top brass at Gitmo wants a way out? Or did the US DoD believe it had a stone-cold case against these two ("bin Laden's driver")?

If it's the second, and these were considered the cases most likely to secure conviction, what are the cases against the 380-odd detainees who are nowhere near getting any sort of trial likely to consist of?

Posted by: Dismal Science | Jun 5 2007 16:41 utc | 10

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