Kudos to the military commissions judges in Guantanamo yesterday who dismissed charges against two people being held there on the grounds that the commissions did not have proper jurisdiction over the defendants. Salon.com has a great story on the decisions here (the site will require you to watch a brief ad in order to reach the article if you do not have a paid subscription).

While it may be that one or both of the defendants really should be properly convicted of something – though it is hard to believe that one of the defendants, who has been held for five years and was only 15 when he was captured, can be guilty of much that would warrant the treatment he has received at our hands – yesterday’s decision was an important reminder to our alleged president that we are supposed to be a nation of laws, not a monarchy that he can rule over by fiat.

For those who are unfamiliar with the earlier Supreme Court decision in Hamdan v. Rumsfeld, here’s a brief rundown: In the early days of the Gitmo fiasco, the government established military commissions to try the prisoners held there, on the logic that the prisoners were not U.S. citizens and not traditional prisoners of war, but were instead “unlawful enemy combatants” and thus, it was argued, not entitled to the normal legal and procedural safeguards provided to the other two groups. A court case was brought on behalf of the prisoners, which ultimately resulted in a decision by the Supreme Court that the military commissions were an illegal creation because they were not authorized by Congress.

In October of last year, the Republican rubberstamp Congress then came to the president’s rescue by passing the Military Commissions Act, which authorized the military commissions and also handily (and in violation of the U.S. Constitution) dispensed with the right of habeas corpus, which had prior to that time only existed since 1305 and has been called one of the most important protections of personal liberty against arbitrary action by the state.

Fast forward to yesterday, which was supposed to be the launching of the new and improved legal military commissions, with the trial of the previously mentioned Hamdan (alleged to have been one of Osama bin Laden’s drivers – apparently since we can’t find bin Laden, our beloved leaders have been reduced to prosecuting his chauffeur) and that now-20-year-old that I already mentioned. Except that in both cases, the military commissions judges dismissed the charges on the grounds that they didn’t have proper jurisdiction.

It seems that when Hamdan and the boy were captured, “unlawful enemy combatant” didn’t exist as a legal category, so they were just classified as enemy combatants by the military (in spite of the president’s claims that they were unlawful). But the military commissions authorized under the Military Commissions Act are expressly permitted to hear cases that involve unlawful enemy combatants, not lawful ones. Lawful enemy combatants must instead be dealt with through other already established legal mechanisms that contain protections for due process.

Now, Bush administration prosecutors could theoretically appeal the decision to an entity created by the Military Commissions Act – except that the positions created to hear such an appeal haven’t been filled yet.

All of this leaves the Bush administration in a rather awkward position with not only these defendants, but also most if not all of the other prisoners locked up in Gitmo. If the military commissions can’t hear the cases, there may be a couple of options for our beloved president and his minions, as far as your humble author can tell:

  1. The government can go through whatever process was established under the Military Commissions Act (or whatever the existing military procedure is for classifying prisoners) to reclassify all the prisoners as unlawful enemy combatants – opening a real procedural and probably legal can of worms.
  2. They can rush to fill the seats on the appeals board created under the Military Commissions Act to appeal the judges’ decisions – with dubious chances of success, given that the judges’ decisions relied on a very plain-meaning interpretation of the Military Commissions Act.
  3. They can try the prisoners, either before courts martial or civilian course, with the attendant procedural and substantive due process protections.
  4. They can let them all go.
  5. They can ignore the judges’ decisions and either get new judges or refuse to release the prisoners in the face of the decision, setting up a nice little constitutional crisis.

My money is on option (1) or (2), though (5) is a strong possibility. Option (3) is the dark horse option (though it is what I believe probably should happen), and the odds of (4) happening during this administration are so improbable that you would be better served by taking any money you might want to use to bet on the outcome and spend it on PowerBall tickets, instead.

At any rate, three cheers for the military commission judges who refused to bow to political pressure and chose instead to uphold the tradition of rule of law in our country. We need more people like them out there right now. They are truly honorable Americans.

And furthermore, I think that Bush and Cheney ought to be impeached.

jane doe

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