On 4 June 2007, in two separate cases, two different military judges dismissed charges against two detainee/defendants, Salim Hamdan, and Omar Khadr.  Respectively, the men were to be arraigned as the first step in their prosecutions via a newly crafted American system of Kafkaesque justice called “military commissions.”[1]  While human rights attorneys, social justice advocates, and even constitutional scholars might see the dismissals as “victories” for the defendants and or the rule of law, or even an internal revolt of the Bush dictatorship and his penchant for Alice in Wonderland Courts (where detainees are literally declared guilty before the trial or hearing), we have reason to be skeptical. 

In the recent past, there have been many federal court rulings on the Bush war on terror [sic], mass detention, and torture.  Rulings from the Supreme Court and lower federal courts in cases such as Padilla v. Rumsfeld (CA2 2003), Rasul v. Bush (2004), Padilla v. Hanft (DC SC 2004), In re Guantánamo Detainee Cases (DDC 2005) and Hamdan v. Rumsfeld (2006), have declared that detainees cannot be tortured, must be given access to attorneys, have the right to some court process to challenge their detention, and must be charged with cognizable crimes or released.  In response such admonishments, however mild, the Bush regime has ignored such decisions, gone forum shopping to find more amenable judges, moved detainees, denied attorneys access to their clients, invented charges, shipped detainees to Bush-friendly torture states like Syria, Egypt and Saudi Arabia, proclaimed that detainees on hunger-strike or who attempt suicide are fighting asymmetrical warfare![2] and continued to hold men and boys in isolation – using the no-touch torture practice of sensory deprivation.  So when Bush attorneys were told that the commissions authorized under the Military Commissions Act of 2006 (MCA) had no jurisdiction to try any of the Gitmo detainees, Bush team prosecutors said they would either appeal (which is probably not permitted under the MCA) and/or reclassify the detainees [3] (which is not allowed under the MCA and probably violates constitutional prohibitions on double-jeopardy) and then charge and try any and all 380 Gitmo detainees for acts defined as crimes under the MCA. 

What we should appreciate is that no one in Gitmo, or any other Bush dungeon around the world, is going free anytime soon.  Note the charges against Hamdan and Khadr were dismissed without prejudice and the two have not been released.  And no one is going to make Bush and his military let these 380 out of the hell called Guantánamo.  As a result of this military opt-out, court acquiescence and Congressional spinelessness, Bush and crew may continue to hold these men – forever!

Particulars and the Dismissals

The Bush administration charged Hamdan with two offenses:  (1) conspiring with Osama bin Laden and others to commit acts of terrorism; and (2) providing material support for terrorism via being a driver for Osama bin Laden, carrying weapons (such weapons never used in any of said violent acts) and receiving training at a so-called al Qaida training camp.[4] 

Though the Bush regime brought a litany of charges against Mr. Khadr, who was not yet 16 years-old at the time of any of his belligerence against American liberators in Afghanistan, all of the allegations of Khadr’s misdeeds are variations on a theme.  In sum, Mr. Khadr is alleged to have committed two principal acts:  (1) he received training on explosives at an al Qaida camp in Afghanistan; and (2) while Americans were shooting at him, Khadr, threw a grenade, killing an American, Sgt. First Class, Christopher Speer (that Speer was in Afghanistan, and part of an illegal invasion and overthrow of the local government is not mentioned in the charges). 

At Hamdan’s arraignment, Judge Allred found that in October, 2004, a Combatant Status Review Tribunal determined that Hamdan was an “enemy combatant.”  Given that the jurisdiction of the commissions created under the MCA only allows the commissions to try “unlawful enemy combatants” (i.e. spies, or other non-privileged belligerents as defined by the laws of war, Geneva Conventions and other relevant authorities),[5] Judge Allred correctly found that Hamdan could not be tried before his court. 

Similarly, in Khadr’s arraignment, Judge Brownback found that no relevant authority had determined that Mr. Khadr was indeed an unlawful enemy combatant.  Brownback added that under the MCA, there is no provision for the trial judge to determine whether a detainee was, under law, an unlawful enemy combatant.  Thus, Col. Brownback, too, dismissed the charges against Khadr.

Again, what is particular troubling for any of us concerned with due process, limited government and freedom as protected through principles of habeas corpus, prohibitions on bills of attainder, ex post facto laws, and some of the evidentiary and procedural protections developed through common law and American courts for criminal defendants – no forced confessions, limitations on hearsay, the right to confront an accuser, etc., is that these charges were dismissed without prejudice.  That is, the military judges – who presumably like their careers in the military – held that Bushevik attorneys can refile the charges after someone or some tribunal declares that Hamdan, Khadr and others are “unlawful enemy combatants.” 

While I expect Bush attorneys to discover new ways both to bring charges and to extract convictions (which will allow military judges to impose the death penalty), there are a number of reasons to believe that such efforts, if achieved, will be illegal under the Constitution and the MCA itself.  But the cynic in me finds that Team Bush will capitalize on these “losses” as they have done with other judicial rulings.

MCA specifics

The MCA is so poorly written that its provision defining the jurisdiction of the commissions probably works to expose the law as seeking to impose punishments ex post facto, i.e. in clear violation of the Constitution.  Consider, as written in § 948d(a):

Section §948v of the MCA provides a litany of crimes and §948d provides jurisdiction to try these new offenses – in this new court.  In normal American jurisprudence, and as delineated in Art I §9 of the U.S. Constitution, as the MCA was enacted on 17 October 2006, any action committed prior to the creation of the law, cannot subject one to punishment ex post facto.  Yet the MCA clearly authorizes the military to try detainees for actions that occurred at anytime in the past. 

Generalities aside, in particular, the MCA defines as criminal, “conspiracy in a war.”  Such a crime never existed under the Laws of War and was not a crime for which one could be charged in a military tribunal or court martial prior to October 2006.  In this sense, as it adds the darling of law enforcement, the “crime of conspiracy” (see §948v(b)(28)), to the arsenal of military (in) justice, the MCA purports to allow irregular military tribunals to charge and convict defendants via an ex post facto law. 

As well, in relation to the reference to the Laws of War, how can one have violated a “law of war” when there was no war?  That is, if we assume, as the Bush administration is wont to claim, that “they attacked us” and “the world changed after 9/11” in that the “war started on 9/11” then any act committed by a belligerent prior to 9/11 cannot – save planning for aggressive war (which arguably cannot be applied to non-state actors, but that the U.S. military does continually – and has done for years) – serve as grounds for charge and conviction.  Of course, the MCA announces that detainee acts prior to this war can serve as the basis for one’s conviction.

What about the crime of providing material support to terrorists?  The Bush regime theory about “material support” for terrorism constructs a new meaning for that well-understood idea.  Providing aid and comfort to the enemy is about providing shelter, food, weapons, and materials – hence the term, “material support.”  In the post 9/11 Alberto in Terror-land courts, when one has received weapons training, when one attends a political rally or military training facility, the receiver is a provider/giver.  Thus, with a twist of logic and rebuke of the plain meaning of words (actually one of the best talents of Bush lawyers), Hamdan, Khadr and the rest, mere foot soldiers at best, are constructed as financiers, weapons makers, and military advisors.  Such prosecutorial construction flies in the face of the plain meaning of the crime as defined is the MCA, now 10 USC §950v(b)(25)(A) which defines the offense of providing material support for terrorism as:

If the Prosecution Won't Fly, We Just Reclassify

But recall, the military judges did not rail on the inanity and inconsistency of the MCA, the Uniform Code of Military Justice, Constitutional jurisprudence, the Law of War, and relevant international treaties.  Instead, they picked out the simple matter that the two detainees were labeled as “enemy combatants” instead of the notably distinct and legally significant term “unlawful enemy combatants.”  But how and when were Hamdan and Khadr defined as “enemy combatants” (which was in opposition to the term “civilian”)?  More importantly, under the MCA, what was the legal effect of the previous determination?

When he was still a darling of the media and his neo-con friends, then Deputy Secretary for the Department of War [sic], Paul Wolfowitz, published an order to create so-called “Combatant Status Review Tribunals” (CRSTs).[6]  The CRSTs made quick determinations as to whether a given detainee was a civilian or “terrorist.”  Hence an arm of the U.S. military had some type of hearing and defined detainees as “enemy combatants.” 

Why was the CRST process so important for the MCA tribunals?  Under the MCA, §948d(c)

Can you appreciate the power of that language?  If the military has determined that one is an “unlawful enemy combatant” (UEC) then an MCA commission trial judge has no authority to revisit the issue.  While Bush loyalists thought that this section of the MCA meant that any and all detainees would be found guilty, by definition, recall UECs are war criminals – always, at least two military judges understood that the determination works both ways.  Hence, as previous CRST hearings defined Hamdan and Khadr as something other than UECs, the MCA commissions could not re-designate the detainees. 

But of course, Bush administration attorneys seek to appeal the dismissal and try these men again.  Bushevik arguments in support of their cause to convict these men take two tracks: (1) the mere semantic difference between labels like combatant, enemy combatant and UEC is unimportant; and/or (2) they are entitled to re-label detainees as UECs at their whim. 

The first argument cannot pass the laugh test.  Recall that given guidance from then White House counsel Alberto Gonzalez, John Yoo, and now Ninth Circuit Judge Jay Bybee and others, Bush drafted executive orders as to construct a new universe of law, whereby thousands of Muslim men could be held not as POWs, but as slaves – to be tortured and outside the protection of the Constitution and American laws and the Geneva Conventions.  Specifically, such detention (or vacation as Rush Limbaugh calls it) was reserved for that special category of UECs.  In this case though, Hamdan and Khadr were found to be enemy combatants not UECs. 

As to re-labeling the Gitmo detainees, there are two huge legal hurdles.  One, as written, there is a question as to whether prosecutors can appeal at all.  Second, the principles of double jeopardy and due process (including collateral estoppel) should prevent the Bush lawyers from redefining legal enemy combatants into UECs.

Bush Regime War on American Jurisprudence

As I read the MCA, I find that the law makes no provision for the government to appeal – at least in the cases of Hamdan and Khadr.  In few passages of the MCA is there any reference to appeal – which is to be expected as the law was written to find convictions of the pre-determined guilty.  But where mentioned, such seems to limit even Busheviks from abusing their own legal process.

Section 950d(a)(A)(1) is titled “Appeal by the United States.”  In detailing when and why the government can appeal it reads: 

Arguably, to understand the full meaning of this provision, we need to see §950d(a)(2).  That reads:

Put together, I am left with two conclusions:  (1) the government can only appeal a matter that occurs during a trial – not a pre-trial event like an arraignment; and (2) if an order finding that the detainees are “lawful combatants” leading to a dismissal amounts to a finding of not guilty, then the government cannot appeal.  Such conclusions are reinforced by §950a(a) of the MCA which reads:

And though later sections of the MCA allude to the possibility of the government having the right to appeal, related subsections seem to negate that as well.

As established under the MCA, the first court of review of a Military Commission is a “Court of Military Commission Review” (CMCR), where its review is not discretionary.  As the chain moves into the civil courts, namely the U.S. Court of Appeals for the District of Columbia, and then the Supreme Court, the latter two have absolute discretion to hear appeals.  But there is a caveat.  Aside from the fact that the so-called CMCR is not staffed, the plain language of the MCA demands that the accused file the appeal!

Section 950f(c) is titled “Cases To Be Reviewed.”  The section reads”

As announced in the MCA thus, there is no ground for the U.S. to appeal to the CMCR.  As well, in reference to the discretionary courts – beyond the CMCR – the MCA explains that the appeal must come from the accused.

So while §950d(d) holds that:

the section is tempered by §950g(a)(2):

Back to Reality

In a 1991 speech, historian Howard Zinn recounted how one CIA official discounted any limitations on domestic spying or abuse of civil liberties.  The CIA agent dismissed the idea that the U.S. Constitution could govern the company’s illegal practices – “just words on paper” the agent said.  “The First Amendment is just an Amendment.”  For the Busheviks, the latest “setback” allows for more legal delays, appeals, more negotiation with Congress to “craft laws” and to give Bush the necessary tools to “fight the war on terror.”  That Mssrs. Hamdan and Khadr are hardly the “worst of the worst” fighting against the largest imperial military in the world with their asymmetrical methods of suicide and hunger strikes, is apparently unimportant.  Perhaps the opposite is true, that these men cannot be held up as justification for torture, stress positions, waterboarding and sensory deprivation; at least some in the military would rather avoid bringing the specifics to light. 

So long as the American courts continue to support the idea that the U.S. is at war and that the war exists anywhere and everywhere that Bush says – and that the enemy is anyone (definitely any non-citizen), the Bush regime can hold thousands, even American citizens, in secret prisons. And when there are no trials (even the MCA does not require trials, see §948b(d)(A)), no press seeking to bring out the truth, no Red Cross access, no protection for ghost prisoners … there can be no justice, there can be no peace.

BC Columnist Dr John Calvin Jones, PhD, JD has a law degree and a PhD in Political Science. His Website is virtualcitizens.com. Click here to contact Dr. Jones.

[1] See Glaberson, William.  2007.  “Judge Throws Out Charges in Guantánamo Prisoner Case.”  New York Times, June 4. 

[2] BBC.  2006.  Guantanamo suicides ‘acts of war.’  BBC, June 11.  Quoting then Guantánamo Camp commander, Rear Admiral Harry Harris, after American officials announced that three detainees committed suicide, Harris said that “he did not believe the men had killed themselves out of despair.  ‘They are smart.  They are creative, they are committed.  They have no regard for life, either ours or their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.’” 

[3] Moore, Matthew.  2007.  Guantánamo tribunal plan thrown into chaos.  London Telegraph (UK), June 06.

[4] Specific charge sheet against Hamdan.

[5] See MCA § 948d(a).  Jurisdiction of military commissions.  A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.

[6] See order of JAG Capt. Keith Allred of 4 June 2007 in the case of U.S. v. Hamdan