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Roger Fitch Esq
15 June, 2007  
Our Man in Washington

The idea of planting a fatal legal flaw in the Military Commissions Act may have been inspired by the Kathleen Turner-William Hurt film Body Heat. The upshot is that David Hicks pleaded guilty in a court that had no jurisdiction


imageIn the American film noir Body Heat (1981), Kathleen Turner gets her lover, a seedy lawyer played convincingly by William Hurt, to draft a will for her rich and soon-to-be-dead husband. She knows that, thanks to Hurt’s incompetence, the document will be found invalid, all to her benefit.

I was reminded of that stratagem when military judges in Guantanamo threw out the Khadr and Hamdan “war crimes” cases this month for lack of jurisdiction.

As the Financial Times remarked “It is unclear whether this blunder reflects stunning incompetence or arrogant disregard for the law.”

Perhaps something similar to Body Heat happened when the Military Commissions Act 2006 was being drafted. Did Pentagon rats-in-the-ranks or Senate saboteurs plant a time-bomb in the draft legislation?

In any case, the Bill that became law contained what proved to be a fatal flaw when it was grafted onto the pre-existing Combat Status Review Tribunals, for the MCA used the word “unlawful”.

Under the MCA, a defendant must be an “unlawful alien enemy combatant”, and this has been duly alleged in “war crimes” charges. However, the CSRTs, whose decisions are “dispositive” under the MCA, have used the meaningless “enemy combatant” status concocted by the Bush administration.

As the LA Times noted in its report of the proceedings, the Bush lawyers eliminated the lawful and unlawful distinction in order “to deprive the war-on-terror suspects of POW rights and living conditions”.

The CSRTs have no legal basis in any statute or regulation. They were diversions set up by the Pentagon within ten days of the 2004 decision of the Supreme Court in Rasul (Hicks), the case that confirmed the right of Guantanamo detainees to have habeas corpus hearings in Washington federal courts.

Being ad hoc and extralegal, the CSRTs conscientiously tracked other Bush flummeries such as the wholly imaginary “enemy combatant”, a fabulation designed by Bush lawyers in the ignorant belief that it would fall outside both criminal law and the law of war. The only alternative status was “no longer an enemy combatant.” That no such categories existed under the Geneva Conventions or international law was of no moment.

In fact, CSRTs ask the wrong question. They present detainees with “a paralysing Catch 22”. Admitting membership in the Taliban makes one an “enemy combatant”, which (the Pentagon claims) precludes PoW status. But denying involvement with the Taliban leaves a prisoner unable to show that he is entitled to PoW treatment. It’s diabolical.

Even if CSRTs provide a bare justification for holding prisoners taken on a battlefield, the omission of a determination of combat status means they can confer no “war crimes” jurisdiction over defendants.

Now, in decisions of separate military judges in Guantanamo, this legislative flaw has caused the dismissal of both the Khadr and Hamdan military commissions. As many noted, the striking effect of the decisions, particularly in the case of Hamdan, is to find that there are in fact no “unlawful enemy combatants” in Gitmo.

David Hicks already has the distinction of being the first person to be held in an Australian prison for an “offence” that is not a crime, “tried” in a court which violated the standards embodied in Australian law, the Geneva Conventions and indeed, the United States constitution and laws.

There is also the little matter that the regulations for the military commissions weren’t even issued when Hicks pleaded “guilty” in March. And the court rules were only issued in May.

Then there was the Australian legal opinion – from retired justice Alistair Nicholson and other eminent lawyers , that the “trial” at Guantanamo might itself be a war crime in which senior ministers of the Australian government were arguably complicit under Australia’s own criminal laws.

After all, defective trials of downed US pilots were considered war crimes by the US when these were conducted by the Japanese in WWII.

Now, however, we find that David Hicks’ plea was accepted by a commission, which according to two of its own judges did not have jurisdiction.

That’s the import of the decision of the military judges, Army Colonel Peter Brownback and Navy Captain Keith Allred, in the cases of the Canadian Omar Khadr and the Yemeni Salim Hamdan, delivered on Monday June 4, a day that will live in infamy for the shoddy workmen passing as lawyers in the Bush administration.

Worst of all for the Bush lawyers, each decision followed from a sua sponte initiative of the judge, the first (that of Khadr) without prompting from military defence counsel. Here is the Khadr judgment and Marty Lederman has more.

According to Judge Allred’s decision in the Hamdan case, the defendant could be one of three things: a prisoner of war, an unlawful alien enemy combatant or something else. Since the government failed to demonstrate that Hamdan belonged to the second category, the military court lacked jurisdiction to try him.

This observation is particularly interesting because it marks the first time that the elephant in the room – the failure to consider the possibility that these men are prisoners of war – has been mentioned since DC District Court Judge James Robertson did so in his 2004 decision in favour of Hamdan.

Robertson had conceded that another “competent tribunal” than the one provided in the US military regulations could suffice, but pointedly said that “the President is not a competent tribunal”, a view shared by Judge Allred in the Hamdan tribunal.

If you’re wondering where you heard the name of Khadr’s judge before, it may be because Peter Brownback was the judge in David Hicks’ original military commission.

This year, however, Hicks appeared before a different judge, Col. Ralph H. Kohlmann. What if it had been Brownback?

* * *

On the same day that the tribunals dismissed (without prejudice) the cases of Hamdan and Khadr, the Supreme Court invited the government to respond within 30 days to the petition for rehearing in the Al-Odah (Hicks)/Boumediene cases.

These were denied certiorari in April, but the court reserved the right to act further, presumably in the event of government mala fides in the DC Court of Appeals where Detainee Treatment Act actions are scheduled.

Surely the latest debacle in Guantanamo will be raised. Of course, the DC cases are about detention, not military commissions, even though Khadr is part of the Al Odah case as a detainee.

As the military judges said that no one in Gitmo has been found to be an unlawful enemy combatant, it is now being suggested that the PoW and Article 3 (non-PoW) issues are back in play.

These issues have relevance for all detainees, since in theory no one in Guantanamo is being held pursuant to a holding of unlawful combatant status – the only lawful basis for denying a combatant PoW status.

Finally, three days after the Guantanamo decisions, the lawyers for other detainees launched a new attack in the DC Court of Appeals, centred on the adequacy and methods of the CSRTs.

By the end of the week, Hamdan’s lawyers had filed a motion in the DC Court as well, seeking en banc review of its February ruling ordering the dismissal of the detainee habeas cases, and other relief.

* * *

In earlier reports I have noted the Tendenz of the Buschvolk to appropriate old Nazi expressions for their more unsavoury experiments, e.g. Heimatssicherheit morphed into the identically named Homeland Security.

Now the astute blogger Andrew Sullivan has discovered the origins of the CIA’s infamous techniques of “Enhanced Interrogation”.

As Sullivan found, it’s a translation of verschaerfte Vernehmung (literally, “sharpened” interrogation). The techniques described in the Nazi protocol are also much the same, although the Nazis didn’t include die Wassertortur in their list of delights.

Some things just don’t lend themselves to literal translations: the Fuehrer Prinzip has been adapted to the Unitary Executive Theory.