Monday, June 04, 2007
Odds and Ends on Khadr [and Hamdan]
Jack asked me to weigh in on the Khadr case. I'm a bit short on time just now, and don't have a great deal to add to Jack's broader comments, so my principal recommendation is to keep abreast of what Bobby Chesney and the folks over at National Security Advisors, as well as Tony Arend, have to say. They are covering the case more thoroughly, and I recommend their blogs to you for further details and thoughtful reactions.
A question and a comment:
What are the means and the standards in the commission rules by which the commission is able to determine its own jurisdiction? I cannot remember any way that the commission is permitted to make that determination. Unless I misremember, the Manual provides that a legal advisor constituted by SecDef makes a determination of whether action should be taken to prosecute before a commission. But where does the Manual create a review process by which the commission can determine whether it has jurisdiction?
Anyhow, the comment: The legal advisor to the CSRTs ruled that they "do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of 'enemy combatant'." The point was that a different tribunal was needed that had competence to make the lawful/unlawful determination.
So it seems the judges for the commissions took their cues from the previous ruling. Since no competent tribunal had been held subsequent to the CSRT, the issue was still undecided.
Professor Lederman, quoting Hansen and Friedman: Why . . . is the U.S. spending time, effort and resources, and squandering what little international goodwill it may still enjoy...
Hmm. Makes ya almost nostalgic for September 12, eh? But, arguably, this usurping son of a former chief spook who himself spent 12 years in or next to the White House has no real use for international goodwill. International fora are, as the Danner article states, tools of the weak. Bush the younger, or more importantly, the handlers of Bush the younger, have no interest in international good will, nor even the principles of our Constitution. Simple will to power is all one needs to understand their moves, sadly.
In a case such as Khadr, because of the sorts of charges brought against the defendant, a preliminary finding of unlawful belligerent status would be virtually equivalent to a finding that the defendant is guilty of the war crimes as charged.
I would note that the tribunal and military commission are two different levels of findings akin to an administrative hearing and a criminal trial, respectively.
The tribunal has a lower standard of proof because its intent is to determine whether a capture should be detained as combatant for the duration of a war to protect other combatants or civilians and is not meant to be punishment for a war crime.
A military commission has higher standards of proof and procedure to try war crimes because the judgments rendered are punitive with punishments ranging from set prison sentences up to capital punishment.
I present "the Professor" Bart DePalma ruminating on the first amendment and giving aid and comfort to our enemies.
from Tom Bell's site agoraphilia in 10/2006 I believe.
this is his complete post and in fairness in Mr. Bell he specifically rejects it.
I would disagree with the use of the extent of the defendant's corroboration (collaboration?)with the enemy to determine whether the speech itself is protected under the 1st Amendment. Rather, the questions of fact of whether the defendant intended to provide aid and comfort to the enemy and whether the speech in fact provided such aid and comfort should be left to the jury in a treason trial.
I would suggest that the 1st Amendment should treat propaganda like slander or libel. If the defendant broadcasted a statement of fact (not an opinion) which he or she knew was false to a third party, the speech should fall outside the First Amendment.
Under this construct, treason would include an American citizen who intentionally broadcasted to two witnesses a statement of fact which he or she knew was false and which he or she knew provided aid and comfort to the enemy.
In sum, treason should include American citizens providing aid and comfort to the enemy on their own initiative. As to the actual damage done by the treason, I do not see the effective difference between the identical enemy propaganda broadcasted by an American citizen on his or her own initiative or in coordination with the enemy. American citizens spreading lies with the intent to destroy the war effort and give victory to the enemy in a war are traitors.
# posted by Bart DePalma : October 13, 2006 9:00 AM
# posted by Garth : 12:54 PM
Is Suskind a liar Bart?
# posted by Garth : 12:54 PM
Garth, et al:
The professors have been good enough to invite us here and only ask that we stay on topic. If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.
Hasn't it seemed to many people that these prosecutions aren't seeking "justice" but revenge? That's why they will prosecute petty ante people. Because it's about revenge for their acts, not justice. Khadr killed a U.S. soldier, therefore he must be made to "pay" for his crime.Post a Comment
The distinction is both legal and philosophical but I wonder how much of the Bush administration fail to understand the difference between justice and revenge. Or the portion of the public who supports the tribuneals.