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Gitmo’s back in the news

gitmo1.jpgOn Monday, there were two arraignments before military judges down in Gitmo which have resulted in a flurry of political fallout. One of the suspects was being accused of being Osama bin Laden’s chauffeur, while the other has been accused of killing a US soldier in Afghanistan with a grenade. However, the military tribunals never got to the merits of either of these cases, instead opting to throw them out because the government didn’t establish jurisdiction over the suspects. Specifically, last year’s Military Commissions Act (which was created in response to the Supremes’ Hamdan v. Rumsfeld decision) refers to “unlawful enemy combatants.” The trouble, said the Gitmo judges, is that these guys had only been classified as “enemy combatants” by the military review boards that decide this, not “unlawful enemy combatants.”

Some are, unsurprisingly, quite happy with this result, looking at it as the end of an ugly road. Take Jennifer Daskal over at Salon:

The unexpected outcome is fitting and a win for the rule of law. The Bush administration’s attempt to create an entirely new system of quasi-justice — one without any established precedent or rules, where even the basis for jurisdiction was made up on the fly — has been dysfunctional since day one….The system has been put on trial rather than the alleged high-level detainees it was designed for. And it should remain on trial until it is dispensed with for good. Its ad hoc nature becomes more apparent with every proceeding.

Similarly, Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, also used this as an opportunity to slap the Bush Administration across the face: “Five-and-a-half years later, we find what happens with that kind of arrogant, go-it-alone attitude - even conservative courts say ‘no,’” The White House, of course, “disagree[s] with the ruling,” and other US officials think it’s just a game of semantics.

Slate’s always insightful Dahlia Lithwick provides a great analysis of this story, summing it up by saying we “can more accurately see it as the professionals [that is, the military judges] ultimately putting their training and principles back into the service of the law or the war, as opposed to the service of this presidency.” Since the real world is crushing down on me right now, I’ll just end by saying you should go read her column (hell, she manages to work in a reference to Volkswagen buses and beads - how can you pass that up?).

| Comments (3)


You are kidding about this case, yes? Unlawful enemy combatant as compaired to enemy combatant? I think somebody is missing the elephant in the room. The fact that this person is an enemy against our government is the problem. They are not citizens of our country so how are they entitled to any protections guarenteed by our Constitution. OK, so next time, we just kill the Enemy Combatant and not worry about if this person is unlawful or not.

Ya know, This kinda of shit by these military adjutants makes me proud of my time in the service.

I'm a carpenter who thinks you lawyers covered yourselves in glory again!

PS,if you could get that whole billing thing under control, the world would be perfect and I wouldn't be embarrased about my daughter wanting to go to Temple law school.

Sorry about that whole " crushing read world" thing, kid.

I hadn't read the majority of the background on this - but I find several issues pretty interesting:

(1) the judges chose to deal with this stuff sua sponte;

(2) they chose to focus on the word "unlawful" - which is pretty much the only part of the terminology that grants them any judicial discretion in determining the law's intent; and

(3) although potentially coincidental, the sua sponte action was taken only after a Democratic Congress was elected.

I wonder how, if at all, this fits into the scheme of judicial involvement in this whole arena (ex.: the 4th Circuit's Dec. 2005 toothless rebuke of the DOJ regarding Jose Padilla). It's astounding that everyone at DOJ, the courts, and elsewhere seem to acknowledge the big white elephant, but nobody saw fit to do anything until now (if at all).

Fucking lawyers.