Is nothing sacred anymore in BushworldTM?
Now even the extra-judicial military tribunals established by the Military Commissions Act (MCA) (passed by Congress last year to override the Supreme Court’s decision in Hamdan v. Rumsfeld) to continue to grant George Bush the tools to “save American lives” from another 9/11, has been repudiated by two military judges. Apparently, they contend that the provisions of the MCA do not apply to many, if not all, of the detainees being held at Gitmo:
In a second blow in a year to the credibility of the legal process put in place at the US prison camp, two separate judges on Monday said the military tribunals did not have jurisdiction over the detainees.
All charges against the two detainees in Monday’s hearings, Omar Khadr, and Yasser Ahmed Hamdan, the man accused of being Osama bin Laden’s driver, were dismissed, throwing the legal system at Guantánamo into chaos. […]
At the root of Monday’s legal fiasco is the insistence of the White House, just after the September 2001 terror attacks, on an entirely new category in law for detainees from the war in Afghanistan – termed enemy combatant. That distinction became further complicated last year when Congress passed legislation to authorise the military tribunals to try “unlawful enemy combatants”.
None of the 385 detainees at Guantánamo, including Mr Khadr and Mr Hamdan, has been classed as “unlawful” combatants. The review hearings which have approved the indefinite detentions at the camp have not entered that territory.
I have to say, the Bush administration has just been given the finger by the military justice system. Otherwise why would they have dismissed the charges against these two defendants on the ground that they were not “unlawful enemy combatants” without even having been asked by defense counsel to do so?
By far, the most stunning aspect of the dismissed charges against Omar Khadr and Salim Ahmed Hamdan—the only two Guantanamo detainees staring down the barrel of a military trial—was that the two military judges in the cases (not one but two, mind you) dismissed them sua sponte, that is to say, without significant briefing or argument from the defense. (It does appear that Hamdan made a motion to do so, but only immediately after Army Col. Peter Brownback had ruled in Khadr’s case.) That two military officers—Brownback and Navy Capt. Keith Allred—devised their own rationales for dismissing the charges is an astonishing development. They could have readily allowed these two trials to go forward; it would not have been difficult for them to construe the Military Commissions Act to provide them jurisdiction, especially if they had simply deferred to President Bush’s 2002 determination that all associates and agents of al-Qaida are automatically “unlawful” enemy combatants. Instead, the two judges took it upon themselves to tell the Pentagon to go back to the drawing board and prove that these defendants were not only combatants, but that they had acted unlawfully—or else the tribunal does not even have jurisdiction to go forward with their war-crimes trials.
Apparently Even they couldn’t stomach the military “show trials” they have been forced to conduct on behalf of the Bush administration which grant only the “illusion of justice” to the detainees. Trials that allow evidence obtained by torture. Trials that prohibit the prisoners the ability to raise the provisions of the Geneva conventions in their defense. Trials that permit the use of secret evidence. Trials that effectively limit the detainees from being represented by the counsel of their choice, unless that attorney has been granted a security clearance to see “classified information.” Trials that cannot be overruled by any federal court because the detainees have been deprived of the right of habeas corpus. Trials that are essentially meaningless as long as Bush, or a President who agrees with his policies toward the Gitmo detainees, remains in office:
Most of the prisoners at Guantánamo have not been charged and will never be brought before the tribunals at all. Some of them have been held for five years already—and there is no end in sight, because the Bush administration has claimed the authority to hold them until the “war on terror” is over. The handful of prisoners who have been charged under the Military Commissions Act will be tried, but there’s no assurance that they will be freed if acquitted. The administration contends that they can be imprisoned indefinitely whether found guilty or not.
I applaud the two military judges who have ruled that Omar Khadr and Yasser Ahmed Hamdan cannot be tried by the military tribunals established by the MCA. At least they see clearly what George Bush and his sycophantic worshipers do not. Namely, that justice cannot exist when it is merely a shadow play. When it stands for a system that offers only the appearance of fairness without granting defendants any substantive rights. When the “due process” given the detainees, and guaranteed by our own Constitution, is a mere sham, a con job, a facade.
For when the President can make the rules up as he goes along, when he can decide which laws apply and which do not, we no longer live in a democratic Republic under by the rule of law. Whatever you call it, when the Chief Executive of our government can act however he chooses, we cannot claim that we have “a government of laws and not men.” Army Colonel Peter Brownback and Navy Captain Keith Allred took note of that fact when they ruled as they did in the cases of Omar Khadr and Yasser Ahmed Hamdan, and I salute them for their service to their country.