Gitmo Detainee Ordered Released

As the scope of the conflict in Afghanistan involving the U.S. narrows, so does the U.S. legal authority to detain people as enemy combatants.  This reality recently resulted in a court order to release someone who has beeb detained at the Guantanamo Bay military base as an enemy combatant for the last fourteen years. Other releases could follow.

An "enemy combatant" may be detained indefinitely merely because he has part of the other side's military in a military conflict with the U.S., in this case one authorized by the Authorization To Use Military Force (AUMF) adopted by Congress shortly after the 9-11 attacks on U.S. targets in 2001. But, when you cease to be in a military conflict with the military force the detainee belongs to, that authority ends. As the Lawfare blog explains at the link above:

On Oct. 19, Judge Amit Mehta of the U.S. District Court for the District of Columbia did something we have not seen in many a year: He granted a Guantanamo detainee’s petition for a writ of habeas corpus, ordering the man’s release.

The man in question is Asadullah Haroon Gul (aka Haroon al-Afghani), an Afghan citizen who was captured alongside six other men in an operation by Afghan government forces in early 2007. All the men, it appears, were members of the armed group known as Hezb-e-Islami Gulbuddin (HIG) commanded by former Afghan Prime Minister Gulbuddin Hekmatyar. Though not formally part of the Taliban, Hekmatyar’s political movement and its armed expression, HIG, were aligned theologically and politically with the Taliban. And after the fall of the Taliban, HIG became one of the armed groups fighting against the new Afghan government, U.S. forces and other allied forces. In short, HIG for many years was a paradigm example of an “associated force” engaged in hostilities against the United States in connection with the larger conflict with al-Qaeda and the Taliban. Indeed, in 2011, a U.S. Court of Appeals for the D.C. Circuit opinion authored by now-Attorney General Merrick Garland expressly affirmed as much in Khan v. Obama.

But here’s the thing about military detention authority: The scope of that authority will grow or shrink in accordance with the scope of the underlying armed conflict on which the claim of military detention authority is based. And thus it mattered a great deal when, in fall 2016, the then-government of Afghanistan reached a peace agreement with HIG. Thus, even without the eventual U.S. decision to withdraw from Afghanistan and end the fight against the Taliban too, the legal foundation for military detention in cases predicated solely on membership in HIG appeared to be going or already gone by late 2016. . . .

In 2018, the Justice Department responded by abandoning its claim of authority to detain based on HIG membership alone. It argued that Gul still could be held, however, based on the distinct claim that Gul separately had been involved with al-Qaeda itself. (See this 2018 Lawfare post from Harry Graver for those details and relevant links.) Gul denies that argument on factual grounds, and for a time that was the central issue in the case. 

Then, with the recent full withdrawal of the United States from Afghanistan, Gul appears to have expanded his argument to include a much broader claim about the expiration of the legal grounds for detention. That claim, if accepted by the court, could have sweeping implications for other Guantanamo detainees.

Omar Khadr Was Released On Bail Last Year

In 2007, I recounted the plight of Omar Khadr, a Guantanamo detainee who was fifteen when he ended up in the military prison charged with offenses taking place as early as when he was ten years old, who had been detained for five years at the time. 

He pleaded guilty to war crimes before a U.S. military tribunal in October of 2010. Five years later, in 2012, after ten years at Gitmo, he was transferred to a Canadian prison. He was released on bail pending an appeal in the U.S. Courts in May of 2015. Per Wikipedia, linked above:

He was the youngest prisoner and last Western citizen to be held by the United States at Guantanamo Bay. He accepted an eight-year sentence, not including time served, with the possibility of a transfer to Canada after at least one year to serve the remainder of the sentence. Khadr was the first person since World War II to be prosecuted in a military commission for war crimes committed while still a minor. His conviction and sentence were widely denounced by civil rights groups and various newspaper editorials. His prosecution and imprisonment was condemned by the United Nations, which has taken up the issue of child soldiers. 

On September 29, 2012, Khadr was repatriated to Canada to serve the remainder of his sentence in Canadian custody. He was initially assigned to a maximum-security prison but moved to a medium-security prison in 2014. Khadr was released on bail in May 2015 (pending an appeal of his U.S. conviction) after the Alberta Court of Appeal refused to block his release as had been requested by the Canadian government. 

In 2013, Khadr filed a C$20,000,000 amended civil suit against the government of Canada for conspiring with the U.S. in abusing his rights. He said he had signed the plea agreement because he believed it was the only way he could gain transfer from Guantanamo, and claimed that he had no memory of the firefight in which he was wounded. Khadr's lawyers successfully challenged his incarceration in Canada as an adult offender. On May 14, 2015, the Supreme Court of Canada rejected the federal government's position, ruling that Khadr had clearly been sentenced by the U.S. military tribunal as a minor. If he loses his appeal of the US conviction, underway in a separate action, he would serve any remaining time in a provincial facility rather than in a federal penitentiary.

He has served 4 years and 7 months of his eight year sentence, and apparently receives no credit for the eight years of time served he had at the time.

Sixteen years in prison for being a child soldier is absurd.

Cowardly Chicken Little Colorado Sheriffs

I have pretty much no respect whatsoever for the 41 Colorado Sheriff's who have written a letter to President Obama explaining that they are terrified that Guantanamo Bay inmates held in a maximum security prison in Colorado would "significantly - and unnecessarily - endanger our citizens."

This simply does not pass any reasonable reality check and makes this prisoners out to be comic book supervillains, rather than the bunch of mostly low level, mostly Yemeni al-Queda functionaries who haven't even committed any war crimes, that most of them are in fact.

The notion that some dangerous al-Queda fifth columnists would try to spring these detainees from a Colorado prison is simply laughable.  They would stand out like a sore thumb and have a very long way to go to a safe haven, unlike the current site in Cuba, where the Cuban government would likely embrace with open arms any escaped detainee and could do so with impunity.

The letter says much more about how cowardly and detached from reality most of these local government elected officials in Colorado are, than it does about the realities of the policy issues involved.

This is simply partisan demagoguery at its worst.  The politicians, including a few Democrats, who have given any credibility to this argument, deserve similar scorn.

A Liberal High Water Mark

We've hit a liberal high water mark, despite the fact that nationally, both houses of Congress have Republican majorities and a majority of U.S. Supreme Court Justices were appointed by Republicans, and in Colorado, one of the two houses of the Colorado General Assembly is controlled by Republicans.  Both the U.S. Senate and the Colorado shift happened in the 2014 election, less than a year ago.

* This morning's decision by the U.S. Supreme Court in Obergefell v. Hodges allows same couples to marry on the same basis as opposite sex couples throughout the United States.  

This is the culmination of the gay rights movement that arose in part from the community of gay men formed starting in World War II when sailors discharged from duty for being gay were all dumped together in San Francisco, began in earnest with the Stonewall riot in 1969, gained urgency as AIDS disproportionately afflicted gay men, saw a serious setback in a U.S. Supreme Court ruling upholding criminal sodomy laws for consensual same sex intercourse in the 1986 case of Bowers v. Hardwick, state and federal legislation overriding a 1993 decision of the Hawaii Supreme Court legalizing same same marriage was a case of one step forward and two steps back.  But, gay rights made a series of courtroom gains simultaneously following and causing shifts in in public opinion.  The 1999 decision of the Vermont Supreme Court mandating civil unions but not requiring them to be called marriage was one of the first big victories.

Legislatures, referendums and lower courts had already brought gay marriage to about three-quarters of Americans (and seventeen countries outside the United States, including Canada, England, Wales, Scotland, Ireland, South Africa, New Zealand, all of Scandinavia, France, Belgium, the Netherlands, Luxembourg, Spain, Portugal and much of Latin America, but excluding Mexico where a constitutional right to same sex marriage was declared on June 14, 2015, but has not yet been fully implemented).  Public support for gay marriage had already reached 57-38 according to a Wall Street Journal poll on the eve of the decision percent when the Court ruled today.  Public support for same same marriage in the U.S. has solidified at above 50% by 2013, and one CNN poll in early 2015 had shown support as high as 63%.  

We can reasonably expect that support for gay marriage will continue to increase significantly over the coming year now that it is legal everywhere, because public opinion usually follows legal resolution of divisive social issue.  In contrast, when Loving v. Virginia struck down bans on interracial marriage, the bans still had strong majority support that continued for something like a decade after the decision was handed down.  Yet now, public support for legally permitting interracial marriage is nearly universal, even among former segregationists and far right politicians and political activists.  

There are rare cases where increased public support for a position taken by authoritative legal bodies (which is almost universal) does not translate into near consensus support over time - opposition to abortion, death penalty support, support for the establishment clause prohibitions on governmental religious statements, and opposition to the right to bear arms, are probably the most notable.  But, they are rare.  

Also, in cases of controversy, legislation and judicial action often finds an uneasy middle ground.  The U.S. Supreme Court's abolition of the death penalty, for example, lasted only a few years, but over time after the death penalty was legally permitted again, the legal system has chipped away at the circumstances when it can be imposed (e.g. in cases involving juveniles, in cases involving the mentally ill, and for most non-homicide offenses such as child rape) and has exercised strict judicial review that postpones most state level executions by a decade or more despite federal laws limiting the scope of collateral attacks on death sentences and other state convictions enacted in response to the strictness of judicial review of these sentences.

Importantly, another reason that legislative and judicial steps to legalize same same marriage have changed public opinion is that when this was done, none of the parade of horribles offered up by gay marriage opponents have materialized.  Some sex marriage had existed continually in some states since 2004 when Obergefell was decided.  Civil unions, which were same sex marriages in all but name, had been around since 1999.  The Netherlands started to allow same sex marriage in 2001 and our neighbor to the north, Canada, had followed suit by 2005.  No notable problems was caused by same sex marriage anywhere that it was legalized, in part, because allowing a couple to marry has minimal impact of people who aren't part of that nuclear family, and in part, because the number of same sex married couples as a proportion of all married couples in any place where same sex marriage has been legalized has always been tiny.

Obergefell also demonstrates the limits of American federalism in private law.  While the textbook theory of American federalism is that states have unfettered discretion to adopt varying legal regimes subject only to minimal federal interference in select areas, in practice, significant differences in private law between states in the face of a mobile and regularly interacting populace are very difficult to sustain.  A regime in which some states had gay marriage, and others did not, posed difficulties when, for example, the military allowed gays to serve, the Social Security administration tried to follow state law, and federal tax law and immigration law provisions dependent upon marital status had to be applied.  The U.S. Supreme Court's Windsor decision, which struck down the "Defense of Marriage Act's prohibition on federal recognition of gay marriages conducted in states where it was legal forced the federal government to recognize gay marriage at least some of the time, and once it did so, the ability of gay couples to marry in states that recognized gay marriage, even if they lived in states that did not, had already created an intractable problem to administer.  Even if the Supreme Court had decided to strike down merely the exemption from the full faith and credit clause in the Defense of Marriage Act and not struck down the ability of states to decide what marriages could be entered into in their own states, the effect would have been almost the same.

* In a sudden tipping point moment in the wake of a white supremacist's murder of nine black people having a prayer meeting at a historic AME church in Charleston, South Carolina, state officials in South Carolina, Alabama, and other states throughout the South are finally taking action to remove Confederate flags and symbols of Confederate leaders (mostly put in place in the 1960s as part of a backlash against the Civil Rights movement).  National park officials are following suit.  Major national retailers, including Wal-Mart, Amazon, Sears and K-Mart are moving Confederate flag products from their shelves.  Former Republican Presidential candidate Mitt Romney acknowledge that the Confederate flag is a symbol of support for racism that must come down and other Republicans have followed suit.

While the changes are mostly symbolic, they disavow almost half a century of public support at the highest level for racist right supremacists across the South, undermining their movement culturally, and signaling, 150 years later, we may finally be at the point where William Faulkner's quote, "The past is never dead.  It's not even past.", may no longer apply to the Civil War, which is still not forgotten but perhaps is finally over.

* Medical marijuana is no longer a crime in almost half of the U.S. states.  Recreational marijuana use is now legal and regulated under state law in Colorado, where I live, and in Washington State, and is decriminalized or likely to be legal and regulated, in a few more.  Marijuana continues to be a crime under federal law for both medical and recreational purposes in every state, but the Obama administration's U.S. attorneys have acquiesced to state preferences by not prosecuting marijuana offenses that are legal under state law with a few exceptions, despite their clearly established legal authority to do so under the Supremacy Clause and case law interpreting it in the marijuana law context.  The change in public opinion about marijuana that state legalization or partial legalization has brought about has also created a strong risk of jury nullification in every marijuana offense prosecution, particularly in states where it is legal and widespread under state law.

More generally, states and the federal government are gradually repealing laws that have given the United States the world's highest incarceration rates, the toughest treatment of juvenile offenders, and the most intensive use of prolonged solitary confinement.  The U.S. Supreme Court's other decision today invalidated on a 6-3 vote, a major portion of the Armed Career Criminals Act which is one of the main mandatory minimum federal sentencing laws, for being void for vagueness (the vote to decline to apply the ACCA to the particularly offense of the offender before the Court was 8-1). Not long ago, Supreme Court has struck down juvenile life without possibility of parole sentences, at least prospectively, and a decision last week invited challenges to prolonged solitary confinement practices.

A series of high profile cases of alleged police uses of excessive force, which rose to national prominence following the shooting of an unarmed black teenager in Ferguson, Missouri by a policeman led to massive, prolonged protests, and serious state and federal investigations that produced real change and has prompted more aggressive treatment of similar incidents and policy changes elsewhere.

* President Obama has issued executive orders that have paused deportations for large numbers of undocumented immigrants who might be eligible for legalization of their status under future laws in the face of stalled legislative efforts.

* Congress passed and President Obama signed Obamacare (the Affordable Health Care Act or ACA), a couple of years after he was elected and this law has slowed health insurance cost inflation and dramatically reduced the number of uninsured people in the country, despite fierce opposition from Republicans.  The issue was central in the successful GOP effort to retake control of the U.S. House of Representatives and was an important part of their ultimate success in securing a majority in the U.S. Senate in the 2014 elections.  The U.S. Supreme Court rejected a challenge to that law (the most recent of several) based on its shoddy drafting, that would have crippled it yesterday in a 6-3 vote.

Increased availability of long term contraception, among other factors, have greatly reduced teen pregnancy rates.

Despite Congressional inaction, a strong labor market, grass roots activism, and state legislation, has pushed up the minimum wage and pay for low income retail and fast food workers across the country.

* The D.C. Circuit Court of Appeals has dramatically constrained the ability of the federal government to use Military Commissions, as opposed to civilian courts, to prosecute suspected terrorists.  The number of persons detained at Guantanamo Bay has likewise steadily declined despite strong Congressional efforts to thwart President Obama's ability to deliver on his promise to shut it down.  

Other Presidential and legal action to unwind draconian policies of the George W. Bush administration in the war on terrorism have been a mixed bag.  The authority of the president to indefinitely detain suspected terrorists as "enemy combatants" subject only to minimal habeas corpus review, and of the President to order the targeted killings of suspected terrorists has survived.  The administration has also continued to advocate for intrusive spying measures that impair privacy.  But, the administration ended the Iraq War (only to reengage at present to fight ISIS and support rebels against the chemical weapons using regime of Syria), and is tapering down our involving in the civil war in Afghanistan against the Taliban.

But, revelations of NSA data collection from U.S. citizens whose scope far exceed what the American public had been told, has resulted in major policy changes narrowing that authority from Courts and Congress fueled by an unlikely coalition of pro-civil liberties liberals who distrust national security agencies operating in secrecy and anti-government libertarian leaning conservatives.

* The proportion of Americans who identify as non-religious has rapidly surged to record levels, while the number of proportion of Americans who identify as Christian has reached record lows.

* The federal judiciary has more Democratic appointees, after six and a half years of President Obama's tenure, than it has had in a long time.

"As of June 11, 2015, the total number of Obama Article III judgeship nominees to be confirmed by the United States Senate is 311, including two justices to the Supreme Court of the United States, 53 judges to the United States Courts of Appeals, 254 judges to the United States district courts, and two judges to the United States Court of International Trade. The number of nominations currently awaiting Senate action is 18. There are currently 9 vacancies on the United States Courts of Appeals, 45 vacancies on the United States district courts, 4 vacancies on the United States Court of International Trade and 22 announced federal judicial vacancies that will occur before the end of Obama's second term."

The balance of power by the party of the President who appointed the federal judge is as follow (Democrats first, Republicans second, vacancies third).  None of the existing vacancies will change the balance of power on any of the existing circuit courts, although announced judicial vacancies could conceivably tip the balance.

SCOTUS 4-5-0
13 Circuit Courts of Appeal Combined 94-76-9

1st Cir. 4-2-0  Dem.
2rd Cir. 8-5-0 Dem.
3rd Cir. 8-5-1 Dem.
4th Cir. 10-5-0 Dem.
5th Cir. 5-10-2 GOP
6th Cir. 5-10-1 GOP
7th Cir. 3-6-2 GOP
8th Cir. 2-8-1 GOP
9th Cir. 20-9-0 Dem.
10th Cir. 7-5-0 Dem.
11th Cir. 8-3-1 Dem.
D.C. Cir. 7-4-0 Dem.
Fed. Cir. 7-4-1 Dem.

* The media widely acknowledges that global warming is real.  Renewable energy usage has surged, and a wide variety of hybrid, plug in electric and alternative fuel vehicles are now available.

Military Commission Conviction Thrown Out

A federal appeals court on Friday set aside the military commission conviction of a Guantanamo Bay detainee [Ali Hamza al-Bahlul] who allegedly produced an al-Qaida recruiting video and served as Osama bin Laden's personal assistant and public relations secretary.

From the Associated Press. The decision came in a 2-1 ruling of the United States Court of Appeals for the District of Columbia Circuit announced today.

Bahlul had originally been convicted of "material support for terrorism, solicitation of others to commit war crimes, and inchoate conspiracy to commit war crimes" by a Military Commission. "Bahlul’s convictions for material support and solicitation" were vacated in 2014 "as violative of the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014), and [the D.C. Circuit] remanded Bahlul’s remaining challenges to his conspiracy conviction to the original panel, see id. at 31."

The Ex Post Facto ruling noted that "material support for terrorism" and "solicitation of others to commit war crimes" were enacted as crimes in the wake of 9-11,but that the acts that were prosecuted by the Military Commission took place before 9-11.

The issue was whether a "law of war" military tribunal had jurisdiction to try the offense of "conspiracy to commit war crimes" which is a violation of U.S. criminal law, but is not a violation of the law of war.  The majority also concluded that this was a question of the subject-matter jurisdiction of the military tribunal that could not be waived or forfeited at trial (where this issue was not raised by Bahlul's lawyers).

Some of the hardest issues presented (like the scope of the "law of war") were stipulated to by the parties or conceded by the government on appeal:

The parties agree that Bahlul was tried by a law of war military commission that had jurisdiction to try charges for offenses against the law of war as defined in Quirin. The government concedes that conspiracy is not a violation of the international law of war. See U.S. Appellee’s Br. to the En Banc Court at 34 (July 10, 2013). The question, therefore, is whether a law of war military commission may try domestic offenses — specifically conspiracy — without intruding on the judicial power in Article III.

The majority of the D.C. Circuit panel found that a "law of war military commission" may not try violations of U.S. criminal laws that are not violations of the international law of war, and that there third conviction of Bahlul must be therefore be vacated.

In doing so, it concluded that the Military Commission exception to the constitutional requirement that all federal crimes be prosecuted in civilian Article III courts, was a narrow one, limited to three specific kinds of military tribunals with historical precedents enumerated by the U.S. Supreme Court in prior cases, that the "law of war" type of military commission was the only one of the three exceptions applicable to this case, and that "law of war" military commissions have jurisdiction only over offenses that both the international community and the United States recognize as violations of the law of war.

This ruling dramatically narrows the utility of Military Commission trials as a means of handling terrorism prosecutions, while not impairing the repeatedly proven capacity of the civilian Article III federal courts to prosecute terrorism cases.

Also, the practical impact of the ruling in the life of Bahlul should not be overstated.  Despite the fact that his military commission convictions have all been overturned on legal grounds, he continues to be detained indefinitely, for the "duration of the hostilities" as an enemy combatant at Guantanamo Bay by the U.S. military.

He will continue to be detained an an enemy combatant until the military decides to release him in its own discretion, or a court determines that the Authorization To Use Military Force enacted in 2001 no longer has any force or effect, because his role, established by the military commission, while not a crime in violation of the international laws of war, clearly establishes that he is an "enemy combatant" as that term has been defined under the AUMF and by the U.S. Supreme Court in its military commission cases.

Thus, this case is more of a repudiation of George W. Bush's military commission's policy and a precedent that may be useful in future times of war and terror hysteria in the nation, than it is a precedent of practical current importance.

The CIA Tortured People and It Didn't Produce Useful Information

A slightly longer summary of the U.S. Senate report on the subject is found here and at the New York Times.  Lawfare also covers the report with links to the original documents.

Thursday Brain Dump

* Denver's proposed camping ban would essentially make it a crime to be a vagrant. What are they thinking? After all the years of progress under Mayor Hickenlooper (who actually had stronger ties to the Downtown Business Improvement District that is its biggest backer in the city than Mayor Hancock does), it is a real pity to see Denver on the verge of backsliding. Putting 300 to 600 more people a day into Denver's jail instead of on the streets is not a sensible solution to Denver's vagrancy issues.

* Good bills to expressly authorize county clerks to send ballots to inactive voters and to curtail prosecutor's authority to charge juveniles as adults without judicial approval for midgrade felonies are making progress in the general assembly, while a bad bill to require photo identification to vote is dead.

* The former sheriff after whom Arapahoe County's jail is named will be spending thrity days there followed by two years of probation and paying a tiny $1,100 fine. He used his influence to great a large scale meth for gay sex ring, and some of the prostituted or extorted young men may have been minors. On the upside, who knew that Arapahoe County would be the first county in Colorado to have an openly gay sheriff, even if the announcement did come only after he had retired, and the sentence certainly doesn't reflect any sentencing premium for gay prostitution over opposite sex prostitution.

* A female Jefferson County jail guard has been charged with felonies including having a romantic relationship with a female prison inmate formerly residing at the Jeffco jail and then lying and covering up.

* Some seriously convoluted messes in police discipline, like a female officer who was allegedly raped by fellow deputies who then covered up the incident who is also accused of fraud and blabbing too much on social media about the internal affair process who was recently fired by the Denver Police Department.

* Four cops who killed members of an innocent, unarmed family in the wake of Hurricane Katrina in New Orleans were sentenced to 38 to 65 years for the killings by a federal judge. Another cop who wrote a deceptive report that purported to clear the cops and recommended prosecuting two of the surviving family members was sentenced to six years. Quite a few other cops who plea bargained in exchange for cooperation received shorter obstruction of justice sentences, the longest of which was eight years. The federal civil rights charges can't be commuted by a Louisiana Governor and are subject to less direct and collateral appellate review than state convictions.

* It is a pity that the first time I heard of perhaps the only private college in the nation catering primarily to Koreans was when six of it students and receptionist were killed (and three other people were injured) by a 41 year old ex-nursing student who had been trying to get a full tuition refund. He turned himself in shortly after the shooting at a local Safeway and was charged with crimes that could draw the death penalty in California.

* The employment situation in the United States is slowly but surely improving with seven months to go until the Presidential election. Advantage Obama.

* College basketball is over, nobody care nearly as much about the NBA's boring post-season play, and opening day for the Rockies is just around the corner.

* The Volokh Conspiracy blog is a wasteland of libertarian bloggers arguing in an endless parade of posts that it is obvious that health care reform is unconstitutional and praying for a return to pre-Lochner constitutional rights for business interests. While the anti-insurance mandate campaign has made it further than most liberals and moderates, myself included, had dreamed that it would, my bet is still for an end result that will be decidely underwelming, narrow and technical. Congressional commerce, taxation and spending powers may take a slight dent in their near plenary status quo, but don't expect a clear ideologically coherent sea change from a court where Justice Kennedy hold the swing vote. At any rate, the only nine votes that count have been preliminarily cast and we'll see in a few months what the opinions in the several cases at issue look like. Throw in a bunch of posts on the scope of the right to deadly self-defense under the Model Penal Code and that's all they wrote. Boring.

* Nokia has finally concluded that maybe letting other companies grab huge amounts of its market share in the mobile phone business is not a good idea and planning on offering a new and improved model of smart phone to win it back.

* One of the little known regional airlines that provides small plane connector flights for a couple of major airlines went bankrupt; the story of the industry for the entire post-deregulation era. Why don't investors instinctive flee for the hills when they hear the word airline? The only worse investment I could imagine these days would be print newspapers, or sovereign debt from less affluent Euro countries.

* There should be a pretty steady stream of DSM-5 driven mental health studies and stories coming out over the few months as deadlines on its ponderous timeline march relentlessly towards its print publication date. For a lot of ordinary people, this decision will make more a difference in their daily lives than anything that the legislatures are doing these days.

* President Obama signed a mildly diluted bill banning insider trading in Congress with bipartisan support. Research conduct and promoted by Professor Bainbridge, a conservative corporate law academic, which demonstrated convincingly that there is rampant insider trading going on in Congress was pivotal in the bill's progress through the legislative process, a somewhat ironic result given Bainbridge's own ambivalence (nay, hostility) to the laws against insider trading generally, at least as currently structured.

* Five alleged participants in the planning of the 9-11 attacks, including the alleged mastermind, are facing renewed military commission trials which will be hard pressed to be completed eleven years later. An early version of military commission trial had to be overhauled when its was determined that sentencing people to death based on evidence obtained through torture didn't promote American soft power. A civilian federal jury in Virginia or Pennsylvania would have been faster, cheaper, more credible internationally and domestically, would have dampened rather than incited the movement behind those attacks, and would have probably more reliably produced a hoped for death sentence than the military commission process. The case simply has not been made that military commissions are a more effective way to deal with terrorism than the tried and true criminal justice system where most people suspected of plotting terrorist attacks in the U.S. or supporting terrrorists abroad are charge, convicted and sentenced to very long sentences.

* A pullout from Afghanistan and the effective date of the main provisions of the health care reform act are both scheduled to happen in 2014 and whether these dates are realistic are both still anyone's guess.

* Japanese and Korean television is much more comfortable with fictional portrayals homosexuality and tween/early teen sexuality than American culture, and is also far less concerned about versimilitude. But blessedly, their television networks also don't feel compelled to run every B+ grade idea for four to eight seasons.

* Why do people like reality TV? My kids love it and I just don't get it. I also don't get the appeal of long, meandering, unstructured talk radio and DJ talk segments. If I'm going to listen to someone talk, I'd prefer to listen to someone who knows what they are talking about and has put some real thought into what they are going to say. Maybe that elitists, but elites earn that designation for a reason.

* The Arkansas Supreme Court found that an eighteen year old student in a consensual sexual relationship with a much older teacher at her high school had a constitutional right not to be prosecuted criminally for their love affair. He had been convicted of statutory rape and sentenced to a many decades long prison sentence. Similar prosecutions in Colorado under the sexual assault by a person in a position of trust statute have been upheld, but those convictions carry dramatically shorter sentences, so the conflict has not been as stark.

* An interesting law review article has pointed out that if a sexually aggressive teenage boy rapes an adult female teacher, that the teacher may have no valid legal defense to a statutory rape charge. The issue hasn't been salient until recently because historically only men having sex with girls could be prosecuted for statutory rape and historically the age of consent was too low to make the possibility a the younger person in the relationship committing rape was vanishingly unlikely.

Yes, I know, there are no links in this post. Maybe later, maybe not.

Are We There Yet?

NPR noted today that the administration is about to start up military commission trials in Guantanamo Bay again.

Congress has essentially barred the administration from conducting civilian criminal trials in the United States and has made it harder for the administration to transfer detainees to third countries. Conservatives now scream bloody murder every time a terrorism suspect is read Miranda rights, because they so strongly favor a military justice approach.

Even those experts who think that military commissions are just as fair to defendants on the merits as civilian criminal trials admit that politically they damage the U.S. reputation for fairness. There are also a host of unresolved legal issues surrounding a process that has been designed and redesigned after the detainees were put in custody.

But, the evidence that the civilian criminal justice system in the United States has an inappropriately low conviction rate (i.e. that it is acquitting guilty people with any frequency), or that the criminal sentences metted out in state and federal courts is too mild, is pretty much non-existent.

The argument that military commissions are faster is also counterfactual. The simple truth is that if everyone in Guantanamo Bay had been treated as a criminal defendant and promptly processed by the criminal justice system, every one of them would have been tried long ago, almost all of them, if not all, would have been convicted, the appeals would have run their course by now, deportation for those low level figures who completed their sentences would have been routine, and the high level figures would have been serving long sentences that while not indefinite, would still be very long. Meanwhile, the U.S. reputation for fairness would have been in tact.

Whatever benefits the U.S. sought to gain from a military as opposed to a civilian criminal justice approach in the Guantanamo detainee process has not materialized. But, the downsides to the military approach have become clear.

Civil Suit Against John Woo By Padilla Advances

A federal judge in California held that a civil lawsuit for damages (called a "Bivens suit") against John Woo, the Bush administration attorney whose legal opinions formed the basis for most of the decisions provided legal cover for much of the torture and denial of access to the courts to "enemy combatants," states a legally valid claim.

The core of the case comes down to the different levels of immunity that government lawyers have in different situations. Discretionary prosecutorial decision making and discretionary judicial decision making have absolute immunity. But, this decision, relying upon some already established precedents, set a different constitutional threshold for liability when a government attorney writes an opinion letter or memorandum that foreseeably denies someone their constitutional rights. In those cases, government employees are entitled to mere qualified immunity, the same level of protection that applies, for example, to law enforcement officers carrying out their duties.

The distinction is similar to the distinction between the liability of attorneys to adverse parties for confidential advice given by attorneys to their clients, for example, in litigation, which does not generally create personal liability for the lawyer (although there is a "crime-fraud" exception), and the liability of attorneys for their opinion letters on the validity of a transaction (e.g. the validity of a bond issue or a tax shelter), which is similar to (although not precisely the same as) a warranty.

Qualified immunity imposes liability when a clearly established constitutional right is violated, but protects the person claiming the immunity when the right protected violated a constitutional right which was not clearly established at the time.

The trial judge has held in Jose Padilla's case (a man declared an enemy combatant by the President and then detained without trial until the U.S. Supreme Court was about to decide his case when he was tried in a federal criminal court on criminal charges separate from those forming the basis for his detention), that John Yoo's actions (mostly a matter of public record and hence not subject to the state secrets doctrine) violated clearly established constitutional rights of Jose Padilla and that Padilla has stated a claim that the harm flowing from Yoo's rulings foreseeably harmed Padilla if the allegations of his lawsuit are true.

The trial judge's ruling gives special emphasis to the facts that Padilla's case involved an American citizen, that the acts in question took place on American soil, without specific Congressional authorization, as a result of the acts of a civilian, rather than a soldier, in a situation where there is no other remedy for the violations of his constitutional rights that Jose Padilla suffered.

Decisions to deny a government employee qualified immunity can be appealed immediately. Since the case is in the 9th Circuit Court of Appeals, and raises substantive issues different from those raised in prior habeas corpus litigation by Padilla, the 4th Circuit's pro-government enemy combatant precedents are not binding in this case.

Yoo is one of the most notorious of America's Bush Administration war criminals, and this suit opens the possibility that Yoo may be held responsible for the heinous harm he has done to the American constitution. He may also face disbarment for his acts, although it appears unlikely that criminal charges will be filed against him. Padilla's case is hardly a sure bet. But, few people deserve legal sanctions for his actions with in government service more than John Yoo. His acts for conscious and calculating efforts to undermine the law in a way that can be claimed for few others in the enemy combatant and torture saga. He was the legal architect of one of the gravest injustices of American history.

After it was declared that he was no longer an "enemy combatant," and being tried on criminal charges in Florida instead, Jose Padilla was convicted of charges that amount to a conviction for joining a terrorist group in August of 2007. Padilla was sentenced to 17 years, 4 months in prison on the criminal charges of conviction by the U.S. District Court on January 22, 2008. He is currently incarcerated in a maximum security prison in Colorado, while his case is on direct appeal to the conservative United States Court of Appeals for the 11th Circuit (the government has filed a cross-appeal as well).

CIA Discloses Scope of Terror Prison Program

The CIA is disclosing what it says was the scope of its secret terrorist prison and torture network during the Bush Administation, and says that it was shut down in 2006. Can this be trusted? Who knows? Not telling is more their style than publicly lying, so it might mean something. The CIA wants to disavow its past practice, but protect those who carried it out from punishment.

The CIA said Thursday that it would decommission the secret overseas prisons where it subjected al-Qaeda prisoners to brutal interrogation methods . . .
[CIA Director Leon] Panetta and other top Obama administration officials have said they believe that waterboarding, the near-drowning method used in 2002 and 2003 on three prisoners, is torture.

The International Committee of the Red Cross, which interviewed 14 prisoners, said in a report made public this week that prisoners were also repeatedly slammed into walls, forced to stand for days with their arms handcuffed to the ceiling, confined in small boxes and held in frigid cells.

Panetta said the secret detention facilities were no longer in operation, but he suggested that security and maintenance had been continuing at the taxpayers' expense since they were emptied under Bush in 2006. Terminating security contracts at the sites would save "at least $4 million," Panetta said.

The CIA has never revealed the location of its so-called black sites overseas, but intelligence officials, aviation records and news reports have placed them in Afghanistan, Thailand, Poland, Romania and Jordan, among other countries. Agency officials have said fewer than 100 prisoners have been held since the program was created in 2002, and about 30 were subjected to what the CIA called "enhanced" interrogation techniques.

Panetta also said he has banned the agency's use of contract employees to interrogate prisoners or provide security at the facilities.

The numbers are smaller than many had feared. Also, given the many locations of these secret prisoner, and the fact that not everyone was held there for the entire duration of the program, each site must have been quite small -- perhaps the size of a small town jail.

Indeed, if the Bush Administration had disclosed the limited size of the program to the public, the public might have been more trusting of its good judgment -- although the small size of the program makes the administrative resources piece of the argument against judicial review suspect. One criminal court judge in Colorado handles more felony cases in a single week. But, we still no little about how culpable these individuals were or how much helpful intelligence was provided by them.

It isn't clear how many prisoners have been transferred to non-secret military prisons in places like Baghram Air Force base in Afghanistan -- several dozen prisoners from outside Afghanistan have been transferred there (out of something on the order of six hundred prisoners), and a U.S. trial court judge has held that they are entitled to habeas corpus review becaue the U.S. has de facto control of the area, and has placed prisoners there for its own convenience rather than out of military extingency. Other terrorism suspects may have been victims of extraordinary redition outside these secret CIA prisons.

The biggest room for deception in this disclosure would be the possibility that other people were detained or tortured in other similar programs which were not disclosed. There is also little or no disclosure of what is going on with regard to U.S. military detentions of people other than U.S. soldiers in Iraq and Afghanistan, as well as other places where it is deployed.

CIA Still Evil

The U.S. Central Intelligence Agency was used as a U.S. government authorized method of committing war crimes. The documents regarding the Bush Administration's use of the agency to engage in torture and secret indefinite detention without any semblance of due process or concern for human rights is detailed in a leaked memorandum that has now been leaked, although many of the details were leaked in less easily confirmed ways.

These policies have increased U.S. exposure to terrorist threats, and have produced casualties for U.S. troops in Iraq, by providing many who would not otherwise have supported or participated in anti-U.S. terrorism the justification for doing so. These policies have deprived the U.S. of foreign cooperation critical to fight terrorism, in one Italian case, even resulting in the ongoing prosecution of CIA personnel. These methods have also been proven time and again to be ineffective means of securing useful intelligence.

The biggest disappointment of the Obama Administration has been its steadfast refusal to disavow the Bush Administration legal doctrines that made this possible, or to pursue the criminals in the Bush Administration who carried out this regime (the Military Commission Act limits civil and criminal remedies available to punish these individuals, but we, the people in whose name these atrocities were committed, are, at least, owed the name of those involved and the details of what happened).

This isn't the first time that the agency once led by George H.W. Bush has abused its authority. The agency's culture remains rotten to the core. It repeatedly violates human rights, its covert actions frequently backfire disasterously, it is unaccountable, and it doesn't do a very good job of providing intelligence or carrying out covert action relative to private sector news agencies or other government agencies with parallel responsibilities such as the State Department, the FBI, and the U.S. military's special forces.

To be clear, I am not disputing that the spy satellite and signals intelligence of the NRO and NSA may have an important role to play. I am not arguing that the U.S. should limit itself to investigating terrorist from its own territory. I am not even arguing that there isn't an important role to play for human covert intelligence, or rare covert actions.

Instead, I am arguing that the CIA has outlived its usefulness in serving these functions. The agency is a failed tool.

A good part of that agency's staff consist of analysts who can be more effective in the State Department where the institutional culture calls for secrecy to be maintained when necessary to serve large foreign policy goals, not simply for secrecy's stake.

The covert operations responsibilities of the CIA, including all detentions and arrests of persons targeted for action, need to be transferred to the U.S. military special forces where the military justice system, and internal military rules of engagement, at the very least, can provide some relief from abuses and public oversight. These rules of engagement furthermore, need to be consistent with what humanity tells us is right and experience tells us work, goals that fortunately are not inconsistent.

Where possible, human intelligence should be conducted as investigations by the FBI (which is authorized to have agents go under cover when necessary).

If this division of CIA responsibilities leaves the nation with no one capable of providing some kinds of human intelligence important to U.S. national security, which can be achieved without torture or detention or assassination, those residual CIA responsibilities should be transferred to a new, much smaller agency, created from scatch with a new institutional culture, that has no other responsibilities or mandate, its own inspector general, a public budget top line, and closer supervision from a mix of political appointees and senior civil servants.

Anything less than the dismantling of the CIA can't fix its failed legacy.

Al-Marri Enemy Combatant Case Ends

The Al-Marri enemy combatant case is over, but the harm this case and the Jose Padilla case together did to the U.S. Constitution remains in U.S. law, probably indelibly for the foreseeable future. Together, these two cases, more than any others in the history of American jurisprudence, have impaired the right of average Americans to be free from incarceration without due process of law.

The judicial branch failed us when it had a chance to stop the gross abuse of Presidential power contrary to the U.S. Supreme Court's prior precedents that these cases represent. This was not for want of trying by some good judges. Padilla won his case before a federal court appellate panel in New York which was later ruled to lack jurisdiction by the U.S. Supreme Court (hence, vacating the ruling). Al-Marri won his case before a trial judge in a ruling on a motion, and then won by a 2-1 margin before federal appellate court panel that first heard his case on appeal, before losing in a 5-4 vote of the en banc United States Court of Appeal for the 4th Circuit -- all of those ruling are now vacated. The executive branch has seen partial defeats on multiple related issues (including the validity of the habeas corpus suspension in the Military Commission Act) before the U.S. Supreme Court.

The U.S. Supreme Court ruled as follows today:

CERTIORARI -- SUMMARY DISPOSITION

08-368 AL-MARRI, ALI V. SPAGONE, DANIEL (08A755)

The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36
(1950).

From here.

Al-Marri, a U.S. citizen, was lawfully in the United States on a student visa, when he was arrested within the United States by law enforcement officers on federal criminal charges involving fraud. While incarcerated and facing criminal prosecution in a federal court, George W. Bush declared him an enemy combatant and detained him indefinitely in a military brig, on the basis of a "declaration" from a senior government official (which is heresay) which was in turn based upon other heresay and never subjected to an evidentiary hearing or test.

Al-Marri filed a petition for habeas corpus in federal district court. The matter was appealed to the 4th Circuit Court of Appeals where Al-Marri lost. Al-Marri sought review by the U.S. Supreme Court. Instead, President Obama cancelled the enemy combatant designation and transferred al-Marri back to the federal criminal justice system facing new charges.

Per SCOTUS Blog:

With Friday’s order on Al-Marri, he will soon be taken into federal court for an initial appearance, to have the charges read to him. A grand jury in Illinois on Feb. 26 charged him with two counts of providing “material support and resources” to the Al Qaeda terrorist network. The maximum penalty on each charge is 15 years in prison. One day after the charges were filed, they were made public and President Obama ordered Al-Marri’s release by the military. He has been held at the U.S. Navy brig in Charleston, S.C., for more than five years without any charges, military or civilian. He was arrested at his home in Peoria, Ill., where he was attending Bradley University. The government later shifted him into military custody, saying he had come to the U.S. to take part in terrorism activities with a “sleeper cell” of Al Qaeda operatives.

The U.S. Supreme Court's decision to vacate the 4th Circuit ruling prevents the 4th Circuit Al-Marri en banc decision from making further bad law (notably, the decision to vacate was made with government consent). But, the 4th Circuit ruled against U.S. citizen Jose Padilla on otherwise similar facts, after which Padilla was transferred to the criminal justice system in Florida, where he was convicted (that conviction is now on appeal), and in that case, the U.S. Supreme Court overruled a 4th Circuit decision to vacate its decision in that case which it felt had been obtained based upon misrepresentations by government lawyers in the case. By refusing to hear the Al-Marri case now, the U.S. Supreme Court had eliminated the most plausible means by which the Padilla precedent in the 4th Circuit could have been overruled.

Therefore, while it is good news that the bad precedent in the Al-Marri case has been vacated, the bad news is that the U.S. Supreme Court did not use Al-Marri's case to overturn the binding 4th Circuit Court of Appeals precedent that held that Jose Padilla's detention as an enemy combatant solely upon the say so of the President was legal.

Furthermore, the first time that the Padilla case arrived at the U.S. Supreme Court, it held that jurisdiction and venue in a habeas corpus petition is proper only in the state where the person is currently being detained. So, simply by virtue of detaining an alleged enemy combatant somewhere within the jurisdiction of the 4th Circuit Court of Appeals, a President can benefit from the 4th Circuit's binding precedent in the Padilla case, subject only to the argument that it has been implicitly overruled by subsequent U.S. Supreme Court decisions.

In short, it appears that the authority of a President to detain a person lawfully within the United States (including U.S. citizens), without trial, upon the basis of a hearsay within hearsay affidavit that the person is an enemy combatant, remains good law in the United States, at least within the limitations set forth in the 4th Circuit ruling in the Padilla case.

Jose Padilla and Al-Marri were the only known individuals detained as enemy combatants within the United States long enough for their cases to make it through the court system. Neither has received any direct remedy (even credit for time served) for the harm they suffered while detained as enemy combatants, and neither was released for any reason other than the grace of the sitting President. Padilla, however, may have received some leniency at sentencing in light of what he had already been through. Neither man, it appears are facing criminal charges in connection with matters they were charged with prior to being detained as enemy combatants. The matters described in the enemy combatant declaration were not brought up in the criminal trial of Jose Padilla.

It is not clear clear what evidence is implicated in the new Al-Marri criminal case. IIRC, the charges brought against him originally were dismissed with prejudice when he was detained as an enemy combatant. There are also statute of limitations, speedy trial, time served, fruit of the poisonous tree evidence, and other unusual issues present in the current criminal trial, although no issues of that type were sufficient to prevent the conviction at trial of Jose Padilla, on rather thin evidence.

Also, Al-Marri, unlike Padilla, does not have a long prior criminal record, so if he is convicted, the sentence pursuant to the sentencing guidelines is likely to be much shorter. However, unlike Jose Padilla, Al-Marri faces deportation after he serves his sentence if he is convicted, and due to the expiration of his student visa, if he is not convicted.

In the end, George W. Bush established that there is no timely judicial remedy for extra-judicial detention in the face of national security concerns, even for people lawfully within the U.S., and that the Congress is willing to go a long way to ratify Presidential action regarding detainees for fear of being called weak on terrorism. But, these episodes also established that there are large and powerful forces within the international and domestic legal and political communities that are extremely uncomfortable with this approach, so the policy never reached beyond these two test cases in the U.S., and the government was never willing to risk having the U.S. Supreme Court rule on the issue and potentially invalidate the policy.

(Popular fiction and some press reports, by the way, wrongly attribute these detentions by the President to the U.S.A. PATRIOT Act, enacted shortly after the 9-11 attacks, actually does address the issue of non-criminal detentions of suspected terrorists, but does so in a far more measured way that gives the President far less power.)

It also isn't at all obvious that the courts would have tolerated this enemy combatant policy if it had been used more widely, as the U.S. Supreme Court indicated in an usual written order accomanying the dismissal of the Padilla case and its refusal to vacate the 4th Circuit decision in that case.

It is not clear if this will be the last judicial word on the enemy combatant doctrine in our generation from U.S. Courts. While the habeas corpus petitions are moot, the issues could come up in the direct criminal appeal of the Jose Padilla criminal conviction (or a collateral attack on that conviction), in the Al-Marri criminal case, or in a civil rights lawsuit brought by either man to the extent that this is not barred by the Military Commissions Act which contains broad grants of immunity, on top of already broad sovereign immunity and state secrets doctrines. Further, the right of each man to bring a civil rights suit might be waived in connection with a plea bargain or negotiated resolution of a criminal appeal. Padilla's may be barred by the doctrines of res judicata or collateral estoppel in any civil suit brough by him by the 4th Circuit ruling in his habeas corpus case.

Congress could, of course, act to prohibit the President from detaining people lawfully within the U.S., absent from combat, and not accused of engaging in combat in the United States, like Padilla and Al-Marri. But, a similar statute already on the books was swept away in the face of arguments that the authorization for the use of military force (which was later enacted) permitted these detention, and that the President has the unilateral authority as a commander-in-chief, to do so.

Senators I.D. American War Criminals

A unanimous report of twenty-five U.S. Senators on the Armed Services Committee (including twelve Republicans) has identified the key responsible parties in the Bush Administration's torture policy. While the report doesn't expressly conclude that they called for torture and were war criminals in those words, that is the clear implication of the short, factually clear, name naming report.

The clear evidence is that these policies don't further intelligence gathering, even in the cases extreme methods are theoretically reserved for us in. Worse yet, one U.S. interrogator has estimated that as many as half of all U.S. casualties in Iraq were motivated by a desire to obtain retribution for this U.S. conduct.

Death, Death, Brig and Prison

Sir Mario Owens whose crimes, including killing witnesses, have been detailed in prior posts at this blog, became the third man on Colorado's death row today. Colorado Supreme Court review will be the next of many appeals in the case.

Five of the Guantanmo Bay detainees are in the process of trying to commit suicide by military tribunal. Rather than defending themselves, they have set out to confess that they are killers and dare George W. Bush to execute them. Apparently, they fear that President-Elect Obama would be more merciful and deny them martyr status.

The case of Mr. Al-Marri, the only person detained indefinitely in a U.S. Naval Brig as an enemy combatant, despite having been arrested through the criminal justice process as a civilian for acts committed while within the United States, will receive U.S. Supreme Court review. While his case is isolated, it is also the only case that can overturn the precedent created in the U.S. Courts of Appeal by the Padilla case that declared detention of U.S. civilians in the United States while the courts are functioning to be constitutional. The Padilla case was mooted when his enemy combatant status was withdrawn and he was tried in the criminal courts in connection with an unrelated terrorist conspiracy. Padilla's case is now on appeal. Al-Marri's case had been remanded to a trial court for consideration of the evidence on the merits in light of the standard enunciated by a closely divided appellate court. There is speculation that a President Obama might intentionally concede the case, as he differs with the Bush Administration on the scope of lawful executive detention of alleged "enemy combatants."

Finally, O.J. Simpson was sentenced this month to a prison term in a Las Vegas robbery and kidnapping case that will leave him in prison for the rest of his life. O.J. Simpson was acquitted in a "trial of the century" for killing his wife in a criminal proceeding (despite a widespread feeling among the general public watching the trial that he was guilty), and was then found liable for damages for the same acts under the lower standard of proof that applies for proof of money damages. The robbery was an attempt to reclaim some of the property he lost in the civil case.

Kangaroo Court Finds Hamdan Guilty Of Something

The military commission trying Salim Ahmed Hamdan, the driver for Osama bin Laden, issued a split verdict on the charges against him. According to the New York Times “the commission acquitted Mr. Hamdan of a consiracy charge, arguably the more serious of two charges he faced, but convicted him of a separate charge of providing material support for terrorism.” One suspects that this means that the commission felt that he helped a terrorist (Osama bin Laden), whom by his own admission he provided services for, but didn't plot any terrorist attacks, although full details of the ten sub-issues decided within the split verdict are not yet available.

The charges carry a maximum sentence of life in prison, but this makes little practical difference to Hamdan until the "war on terrorism" is over, because Hamdan is being detained indefinitely as an "unlawful enemy combatant" anyway. Depending upon the sub-issues resolved by the commission, fairly modest sentence isn't out of the question. Short of a reversal of that "unlawful enemy combatant" finding, he is detained either way, probably at Guantanamo Bay until futher notice, perhaps in different cell block until he completes his sentence, after which he might be returned to his old cell block.

Sentencing hearings are expected in the near future, probably to be completed this week.

It isn't clear how U.S. authorities address the issue which is so easy in civilian criminal proceedings of "time served" which normally reduces a criminal sentence day for day. In the Jose Padilla's criminal proceeding, which is the only applicable precedent, Padilla was not given credit for time served as an unlawful enemy combatant (although he was given credit for time served in civilian custody was transferred to the criminal process), but did have his prior enemy combatant detention considered under the sentencing guidelines as a relevant factor to reduce his sentence.

Unlike Padilla's case, however, Hamdan will have been in military custody both before and after this conviction.

UPDATE:

The sentence entered, prospectively, for Hamdan, is five more months. After that, he will just be one more indefinitely detained unlawful enemy combatant again. Clearly, the military commission of six officers was not impressed that Hamdan was anything more than a bit player.

It doesn't appear that there is any way that the sentence can be increased on appeal in the current process.

Salim Hamdan's sentence of 5 1/2 years, including five years and a month already served at Guantanamo Bay, fell far short of the 30 years to life that prosecutors wanted. It now goes for mandatory review to a Pentagon official who can shorten the sentence but not extend it.

It remains unclear what will happen to Hamdan once his sentence is served, since the U.S. military has said it won't release anyone who still represents a threat. The judge, Navy Capt. Keith Allred, said Hamdan would likely be eligible for the same administrative review process as other prisoners.

Hamdan thanked the jurors for the sentence and repeated his apology for having served bin Laden. . . . the commander of the detention center, Navy Rear Adm. David Thomas, said last week that convicted prisoners will be held apart from the general detainee population at the isolated U.S. military base in southeast Cuba.

One important question is whether the expiration of Hamdan's sentence will render any appeals moot before the case receives meaningful review on the merits. Many of the cases that have served as precedents for the military commission debate resulted in executions. There is no case law, of which I am aware, on the collateral effects of a military commission sentences whose term has been fully served.

Normally, quasi-criminal findings in civil cases arising from the same acts as a criminal conviction, such as a parental rights termination case or a suit for civil damages or a license revocation hearing, don't count as a felony conviction (bankruptcy discharge of indebtedness rules, however, sometimes use broader definitions). But, one would assume that Hamdan would be a deportable alien (notwithstanding the fact that he came to U.S. controlled territory involuntarily).

END UPDATE.

Appeals are certain to follow. As SCOTUS Blog explains:

Under the MCA, a verdict and sentence are first reviewed by a Pentagon official known as the “Convening Authority.” That official has the “sole discretion and prerogative” to modify the verdict and the sentence imposed, but may not increase the sentence.

Beyond that official, there is a right to an automatic appeal if the commission and the Convening Authority have agreed on a guilty verdict. The appeal goes to a special military court, the U.S. Court of Military Commission Review. Only after those two steps have been followed may a case then go to a civilian court — initially, the D.C. Circuit Court.

From there, a case may go to the Supreme Court on certiorari, with the Justices having the authority to grant or deny review.

The issues on appeal will be somewhat narrower than those in prior facial attacks on the system. The presiding military judge of the commission excluded a great deal of the evidence against Hamdan on the grounds that was unreliable because it was coerced, which forecloses important challenges to the conviction.

Perhaps the most important question is whether "material support for terrorism" is a law that may be constitutionally applied to Hamdan. Merely aiding the enemy as a camp follower or civilian support person has not historically been considered a war crime in violation of the law of war, even when the civilian knows that the people he is aiding are engaged in war, or for that matter, war crimes. Material support for terrorism is a crime under federal law in the United States, but is available before the Military Commission arguably only because the Military Commissions Act authorized prosecutions for that charge after Hamdan was in custody in Guantanamo Bay. Hamdan has argued that any new crime military commissions are authorized to prosecute under the Military Commissions Act are ex post facto laws as applied to him.

Also, consider that most of the time that Hamdan was serving as chauffer in Afghanistan, that Osama bin Laden and his organization were legally recognized partners of the then legitimate government of most of Afghanistan, the Taliban. This prosecution is somewhat akin to prosecuting someone for being the driver for the Prime Minster of Vichy France, particularly now that the Military Commission has cleared Hamdan of conspiracy to actually commit any terrorist acts. Hamdan has been found to be, as he has claimed to be from the start, a small fry, not particularly culpable individual, in an organization that attacked the United States.

The Convening Authority is likely to affirm this verdict, and the U.S. Court of Military Commission Review may be reluctant to find the law bringing it into existence to be unconstitutional. But, the D.C. Circuit and the U.S. Supreme Court will likely be more bold in considering the ex post facto argument.

Behind the technicalities of the ex post facto argument, lies the larger policy issue behind the Military Commissions Act's expansion of the scope of matters which may be prosecuted as war crimes before a Military Commission itself. Is there any point in making a distinction between someone being an "unlawful enemy combatant" subject to military detention indefinitely, perhaps for the duration of the "war on terror" and at least for the duration of U.S. involvement in warlike hostilities in Afghanistan, and "material support for terrorism"?

After all, current U.S. policy already distinguishes between Taliban soldiers, who are prisoners of war subject to the Geneva Conventions, and al-Queda operatives, who are considered "unlawful enemy combatants." It isn't obvious to me that it is possible to be an "unlawful enemy combatant" (a determination which must be made on a preliminary basis for the Military Commission to have any jurisdiction over the case at all) without provided "material support for terrorism."

The current Bush Administration's Department of Justice has argued that the civilian crime of material support for terrorism includes even the marginal case of the Swiss grandmother sending a check to an organization she believes to be a charity that is really a front for a terrorist group. For my druthers, being an unlawful combatant of any kind seems to involve action (combat or preparation for combat) much more serious than mere material support of an organization that happens to be a terrorist organization, even if that support is intentional. Hamdan's strongest substantive (as opposed to procedural) issue before the U.S. Court of Military Commission Review that precedes D.C. Circuit review, is that a conviction for the mere material support for terrorism charge, standing alone, does not suffice to establish that he was actually a combatant. And, if one is not a combatant, than surely, one is not an unlawful enemy combatant. And, if one is not an unlawful enemy combatant, then the entire Military Commission apparatus lacks the jurisdiction to try him for war crimes.

This brings out some of the contradiction inherent in the notion of an "unlawful enemy combatant."

Historically, an "enemy combatant" was a soldier employed by a country whom you had declared war upon and hence your enemy. Soldiers who followed the laws of war were "lawful enemy combatants" entitled to prisoner of war protections under the Geneva Conventions who received "combat privilege" for their acts, which would otherwise be crimes, taken on the basis of lawful orders from their military superiors. A POW discovered to have committed war crimes is an enemy combatant who may then prosecuted by a military tribunal for war crimes, which are unlawful.

People who weren't soldiers, were civilians. They were subject to criminal liability for committing civilian crimes, even if those wouldn't be war crimes if committed by a soldier acting pursuant to lawful orders. A military court might adjudicate crimes by committed by civilians in places where there was no functioning civilian justice system, such as occupied territory, in furtherance of general civil order. But, being a civilian criminal is not a basis for indefinite military detention.

Apparent civilians caught in the act of using force against or spying upon military forces were often summarily executed even if they surrendered. This is legal under military law because they don't have combat privilege, so they are unlawful combatants, who may also happen to be enemies because they are citizens of a state with which we are at war.

It isn't obvious, however, that historical military law contemplates a class of persons classified as "unlawful enemy combatants" separate and apart from acts taken by mere civilians who commit civilian crimes without the benefit of combat privilege, who are subject to indefinite detention in a manner akin to prisoners of war, as the Bush Administration has argued and used as a basis for its current regime. The good judgment of the lawyers who came up with this theory has to be questioned, but these are the same people who say that waterboarding people isn't torture.

While the U.S. Supreme Court has authorized indefinite military detention of enemy combatants based upon prisoner of war precedents, it isn't clear from the language of those rulings that the U.S. Supreme Court has made the distinction between "unlawful enemy combatants" and "prisoners of war" that the administration holds as a central element of its anti-terrorism regime, or that the U.S. Supreme Court has agreed that the duration of the "war on terrorism" as opposed to the "war in Afghanistan" has been accepted by the U.S. Supreme Court as the relevant time period for such an indefinite detention.

Hamdan's case, where he is being tried for an offense little different and perhaps less serious than the status that military officials have ascribed to him, is a good one for clarifying these points.

Mixed Result For Al-Marri In En Banc Review Ruling

There have been just two people detained as enemy combatants in the United States.

One, Jose Padilla, a U.S. citizen, was criminally prosecuted for conspiracy and his enemy combatant status was vacated before his case was fully litigated, leaving in place a bad precedent in a moot case. Padilla was ultimately convicted and sentenced to a long prison term. His case is now being appealled in the civilian courts.

The other, al-Marri, is a non-citizen legally in the country, was criminally prosecuted, after which he was removed from the criminal justice system upon being declared an enemy combatant.

The controlling 5-4 per curiam ruling in his case states:

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).

Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has
empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process
to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.

*We deny the Government’s motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri’s habeas petition.

Thus, Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voted with the government on both issues, while Judges Michael, Motz, King, and Gregory voted against the government on both issues. The swing vote was Judge Traxler who upheld the government's authority to detain Al-Marri if the allegations made were true, but stated that Al-Marri was not afforded sufficient due process, so that further proceedings are required.

The highly divided en banc panel of the 4th Circuit (links are available at How Appealing) reached its decision in a 5-4 vote that spawned seven opinions.

Either parties may either further appeal to the U.S. Supreme Court, which refused to grant certiorari prior to the en banc decision, or may see what happens upon remand. SCOTUS blog reports that Al-Marri plans an appeal to the U.S. Supreme Court, while the government is willing to let the ruling stand and proceed to dealing with the case on remand.

The best indication of the rights that Al-Marri will have on remand flow from swing Judge Traxler's concurring opinion. This states:

The general rule, therefore, is that al-Marri would be entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him. But, if the government can demonstrate to the satisfaction of the district court that this is impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery requests, then alternatives should be considered and employed. Given the grave national security concerns in matters such as this, and that the Rapp Declaration references not only al-Marri’s activities in this country but also those he engaged in abroad prior to his entry here, the Rapp Declaration might conceivably prove to be "the most reliable available evidence" within the meaning of Hamdi, at least as to some allegations. However, I am not satisfied to let matters stand as they are when the government has not even been required to demonstrate to the district court why it cannot or should not be required to produce, even for ex parte examination, any of the supporting evidence relied upon by Rapp to justify al-Marri’s detention. Here, the government has made no showing that "[h]earsay . . . [needs] to be accepted as the most reliable available evidence from the [g]overnment" or that the "exigencies of the circumstances . . . demand . . . [that the] enemy combatant proceeding[ ] . . . be [otherwise] tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Hamdi, 542 U.S. at 533-34; cf. Boumediene, slip op. at 64-65 ("Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.")

In other words, the government will be required to present some real evidence and to justify decisions to withhold evidence on an individualized basis, but may still be permitted to withhold some evidence from Al-Marri.

This ruling, on the power of the President to treat someone outside a war zone in the continental United States as an enemy combatant is the most important of all the war on terror cases other than Padilla, because the habeas corpus rights of people within the United States have a far greater impact on the typical American or American immigrant's constitutional rights. It does not appear to overrule the troubling Padilla holding, although it does appear to narrow it.

We Have Met The Enemy And He Is Us.

We are the evil empire. The U.S. military, under color of law with orders flowing from an intentionally engaged President on down, detains people carelessly and with no due process and then senselessly abuses them. Congress, including Colorado Democrats like Ken Salazar and John Salazar have put their stamp of approval on these actions, enacting amnesty for the monsters who carried out this abuse in the Military Commissions Act. Our courts have checked the President a little, but not decisively.

Change cannot come soon enough.

Guantanamo Bay Detainees Have Habeas Rights

The U.S. Supreme Court ruled 5-4 in the case Boumediene v. Bush today that detainees at Guantanamo Bay have a right to bring habeas corpus cases in federal court. The habeas corpus jurisdiction stripping provisions of laws enacted by Congress to deny them this right (the Detainee Treatment Act and the Military Commissions Act) were held unconstitutional.

In another detainee case, Munaf v. Geren, the U.S. Supreme Court held unanimously, that the federal courts have habeas corpus jurisdiction over U.S. citizens held in military custody by U.S. soldiers in a military chain of command, even if they are part of a larger military coalition.

But the U.S. Supreme Court also held that on the merits in that U.S. citizens who travel voluntarily to a foreign country and are held there by U.S. military authorities may be transferred to the custody of local courts to face criminal charges arising from conduct in that country. No exception to this ruling on the merits exists even if the local courts don't meet U.S. constitutional standards and local authorities are alleged by authorities other than the U.S. Executive Branch to be likely to engage in torture in the particular case before a U.S. Court.

The later opinion involved U.S. citizens who voluntarily traveled to Iraq and faced indictment by Iraqi courts for offenses committed in Iraq. Thus, this leaves open the more general question of the legality on the merits of extraordinary rendition of U.S. citizens to countries whom third parties claim engage in torture. The question of whether the U.S. military may transfer someone to foreign authorities whom it openly agrees are likely to torture the person transferred also remains unresolved.

These cases also leave open the jurisdiction of U.S. courts in habeas cases involving people who aren't U.S. citizens in places, unlike Guantanamo Bay, where the U.S. does not have de facto sovereign authority, although the Guantanamo Bay case made clear that the proper analysis hinges on the objective reality and practicalities involved, rather than legal formalities like sovereignty. The Guantanamo Bay case also suggested that a government intent to evade habeas corpus jurisdiction by its actions was a factor to be considered, and that an intent to evade habeas corpus jurisdiction hurts the government's case.

The scope of habeas review is unclear. But it appears that detainees will be allowed a full evidentiary hearing in a federal courts with the power to release them from custody on the questions of whether the detainee is indeed an enemy combatant, and on the question of whether the President had the legal authority to detain the detainee given the findings of fact made in the federal court. The Combat Status Review Tribunals currently in place to make enemy combatant determinations were found by the U.S. Supreme Court to be constitutionally inadequate.

The ruling leaves in tact provisions of the Military Commissions Act establishing an amnesty for U.S. government officials who committed war crimes during the Bush Administration from civil and criminal liability, and a prohibition on entertaining civil actions of detainees other than habeas corpus petitions in connection with their detentions.

While the rulings have no direct impact on the military commission trials of a couple dozen detainess for war crimes, legal commentators have suggested that the ruling may enlarge the scope of legal arguments that counsel for the detainees may make before those Commissions by clarifying that U.S. Constitutional protections apply to detainees at Guantanamo Bay. For example, detainees in custody prior to the enactment of the Military Commissions Act may be allowed to argue that under the Ex Post Facto clause, they may not be tried for crimes like conspiracy, which were not considered war crimes prior to the enactment of the Military Commissions Act. The admissibility of evidence based upon coerced testimony (i.e. torture) may also be in doubt. And, this ruling probably spares Omar Khadr from the possibility of the death penalty, because he was a juvenile at the time that the alleged war crimes were committed.

Government Removes Omar Khadr's Judge

In the normal course of legal practice, you can't remove a judge in the middle of a case because he's ruled against you on discovery and jurisdictional issues. But, Guantanamo Bay's Military Commissions aren't the normal course of legal practice, and the military has done just that in a pending Military Commission case.

After the jurisdiction ruling the military hadn't liked, it convened a military appellate court that hadn't been at place at the time that the appealed ruling was made, that reversed that decision.

Just this week, the military had defied the Military Commission judge's order of several months ago to produce medical and interrogation records in the government's possession concerning the man facing trial before it. But this defiance, rather than causing the government to be held in contempt of court, produced the removal of the judge, Army Col. Peter Brownback III, from the case at the direction of the Chief Judge of the tribunal.

Previously, Khadr's defense attorney was disciplined for criticizing the tribunal and quit the case, and his prosecutor resigned out of disgust with the system. Under current rules in the tribunal, Kahdr's new defense attorney will be told the identity of the witnesses against him, but Kahdr' will not be told their identity.

The Case

Canadian detainee Omar Khadr was captured in Afghanistan in July 2002 when he was fifteen years old.

Khadr, now 21, faces up to life in prison if convicted at Guantanamo on charges of murder, conspiracy and supporting terrorism. He is accused of lobbing a grenade that killed U.S. Army Sgt. 1st Class Christopher J. Speer during the firefight in which he was captured.

He also faces charges of attempted murder and spying. The charged ordinarily would carry the death penalty. As explained at greater length below, however, Omar Khadr's primary crime is being a soldier without a license recognized by the United States government.

He is the only Western citizen remaining in Guantanamo. Canada has refused to seek extradition or repatriation.

It isn't clear that he threw the grenade in question. Wikipedia, citing the Toronto Star, notes that:

In February 2008, the Pentagon accidentally released documents that revealed that although Khadr was present during the firefight, there was no other evidence that he had thrown the grenade. In fact, military officials had originally reported that another of the surviving militants had thrown the grenade just before being killed.

He allegedly met Osama bin Laden when he was ten years old, and was in his parents care until, at least, the month before he was captured.

Historical Background

Immediately before the U.S. and U.K. led invasion of the country, Afghanistan was at what had appeared to be the final days of a civil war between the Taliban, a fundamentalist muslim theocractic government that ruled most of the country, and a rebel group known as the Northern Alliance, made up of regional and tribal warlords, which had lost control of all but a small corner of the country.

The Taliban had emerged out of the chaos that had left Afghanistan effectively stateless in the wake of the civil war with occupying Soviet forces. The Taliban, since 1996 tolerated and was loosely allied with Osama bin Laden's al-Qaeda terrorist organization, which was behind the 9-11 attacks, which took place in 2001.

After 9-11, the U.S. demanded that the Taliban deliver up al-Qaeda leaders, shut down terrorist training camps and provide protections to certain foreign nationals in the country. The Taliban had counteroffered to try bin Laden in Afghanistan in an Islamic court, an offer that was immediately rejected. The counteroffer was promptly rejected and on October 7, 2001, the U.S. and U.K. invaded in a military effort that leveraged the rebels forces of the Northern Alliance and used the Northern Alliance as the core of a new regime. Before, October 7, 2001, the U.S. had not taken sides in this foreign civil war and had not clearly declared that collaboration with the Taliban amounted to supporting terrorism.

By July 2002, the Taliban had been defeated in most of Afghanistan by foreign troops allied with the Northern Alliance. At that point:

The Taliban, who during the summer of 2002 numbered in the hundreds, avoided combat with U.S. forces and their Afghan allies as much as possible and melted away into the caves and tunnels of remote Afghan mountain ranges or across the border into Pakistan during operations.

Omar Kahdr's firefight took place during these mop up operations. The Taliban itself lived to fight another day, regained a measure of military power, and continues to conduct an insurgency against the U.S. supported regime in Afghanistan, controlling some areas.

The conditions of his detention and interrogation have been inconsistent with anything that would be lawful for a prisoner of war, or a criminal defendant.

Legal Background

Under the "laws of war," uniformed soldiers with the recognized military of a sovereign nation who are captured are not guilty of war crimes or subject to military justice for killing enemy soldiers in battle. Instead, they are classified as prisoners of war and are subject to detention for the duration of the hostilities after their prisoner of war status is confirmed by a tribunal of the capturing power.

Child soldiers are subject to particularly lenient treatment, as they are viewed as both prisoners of war who are themselves victims of war crimes.

But the U.S. did not recognize Omar Kahdr as a uniformed soldier for a recognized military of a sovereign nation. While the Taliban and al-Qaeda both had organized forces involved in the civil war in Afghanistan, the U.S. did not recognize soldiers not in uniform and soldiers affiliated with the al-Qaeda part of the insurgency as eligible for prisoner of war status.

Murder by soldiers is not historically war crimes, conspiracy was made a war crime by the fiat of the Military Commission Act of 2006, and support of terrorism is largely a criminal law concept rather than a military law concept. Spying is the only historical war crime for which Khadr is charged, and the species of spying he is charged with is more that of a scout or reconnaisance soldier (observation of troop movements from afar), than the kind of human intelligence in disguise traditionally associated with spying as a war crime.

Someone who is not recognized as a legitimate soldiers is not protected by prisoner of war status and is instead criminally responsible for murder and other crimes for warlike acts. Without the protection of prisoner of war status, or reductions in culpability on account of his age, Omar Kahdr is, under the logic of the U.S. prosecution in the Military Commissions, culpable to the same extent that anyone who was involved in a murderous criminal gang. Indeed, under the kind of reasoning used in felony murder prosecutions in a criminal court, his involvement in the firefight may make him guilty of murder even if he didn't personally throw the grenade the killed the U.S. soldier.

But because Omar Kahdr is being classified as an "unlawful enemy combatant," he can be tried before a Military Commission. Unlike the criminal justice system, this system has not afforded him protections from harsh treatment while detained, coercive interrogations, and delay in having his status determined. Furthermore, even if he is acquitted of the charges he faces before the Military Commission, he can be detained indefinitely.

Conclusion

Omar Khadr has been though hell because he was a child soldier fighting for a military force in a foreign civil war that the United States refuses to recognize as a legitimate military force, at the behest of his father. If he had fought in the same war for a different unit within the same insurgency that was associated with the Taliban, and had worn a uniform, he would have been a prison of war entitled to special protections under international law as a child soldier. But, this isn't how civil war is conducted in Afghanistan.

The legal system he is being tried in fails to meet any recognizable standards of military or criminal justice. Every player in the legal process in his case has been subjected to questionable political interference.

Khadr has been detained for almost six years, which is longer than some U.S. troops who commited war crimes in Iraq and Vietnam that caused death have been sentenced to in U.S. courts-martial, under conditions that do not meet international standards or U.S. constitutional standards for human rights. The death penalty has not been ruled out for him, despite the fact that the events in question took place when he was 15 years old.

This case has not, and will not, make Americans safer. The connection between his participation in an Afghan civil war, and the 9-11 attacks on the United States, is remote. This is not the sort of case where punishing an opponent is so important that our national honor should be sacrificed in the process. He is not a big fish. He is guilty of being an ordinary low level soldier in an insurgency, like thousands of men now held captive in Iraq and Afghanistan have done in the course of the U.S. involvement in wars there. But they have not faced similar treatment, and we do not claim that the other soldiers killed in the Iraq War and war in Afghanistan have been denied justice as a result. The person who killed the soldier whose death this case seeks to vindicate is probably dead already anyway.

Many of the other Guantanamo Bay defendants facing Military Commission trials are similarly small fry bit players in a larger civil war that they signed up to participate in before the United States was involved. The process, moreover, is so tainted that it cannot legitimately condemn even genuine senior masterminds of terrorist attacks against the United States, as a handful are alleged to be.

There are a lot of law review articles and op-ed opinions that argue that Military Commissions are a necessary compromise in an age of terrorism. The United States has tried the idea now. It failed to deliver anything it promised to do and has impaired the national security of the United States and its ability to effectively fight terrorism. Fighting terrorism is first and foremost about being able to secure cooperation by holding the moral high ground. President Bush and his lackeys forfeited the moral high ground at Guantanamo Bay and in doing so, have put us all at risk.