Tom p asked (at 7:12pm): "Who among you are willing to be prosecuted, even for a crime as simple as jay-walking, under these rules?" Well, I'm not eager to be charged with any crime, but whether it were jay-walking or murder, I'd much rather be tried by one of these commissions than by the regular criminal courts of most other countries other than the U.S. The procedural rights accorded to the accuseds in these proceedings aren't as extensive as they are for regular criminal trials inside the U.S., but they are better than what's available in many, many other supposedly civilized countries. (Contrast, e.g., all countries whose criminal systems stem from the Napoleonic Code, in which there is no presumption of innocence!) Moreover, I personally would much rather risk my life on the relative degrees of corruption vs. integrity in the U.S. military than I would on the judicial systems of most other countries (including places like Spain, Italy, Japan, or even Canada).

It's fine that there are skeptics. When a judge is taken off a case, it's fine that someone asks "Why?" But when there's a clear answer that doesn't smack of anything improper -- as here, where the judge is, by his own decision and agreement, going off the active duty status that he'd need in order to preside -- then only hard-core conspiracy theorists will continue to insist that this incident shows some lack of fairness.

As for the pending ruling on production: I don't know whether departing judge Brownback's interim ruling is correct or incorrect. I can't tell from these stories, and I don't know, whether the commission's tribunals permit interim challenges to trial judge rulings on producing evidence. It may be that the prosecution is seeking immediate review prior to complying, and that may be entirely proper. Even if not, however, presumably that's a potential appeal point for this defendant; if the prosecution chooses to run the risk of noncompliance, they do so knowing that creates a vulnerability on appeal. And even that presumes that Judge Brownback's successor lets the trial proceed notwithstanding their noncompliance. Instead, it's entirely possible that he may agree with Judge Brownback, and condition holding the trial on the prosecutors' compliance. In that event, there would likely be a dismissal, from which the prosecutors would appeal. Bottom line, anyone whose knickers are seriously twisted by this interim evidentiary ruling is ignoring the bigger picture and drawing vastly premature conclusions.

The outcomes of these trial are not foregone conclusions by any means. Congress defined the playing field (including the factors affecting its slope), but these are incredibly challenging prosecutions even apart from the self-imposed handcuffs that may be imposed by national security concerns. I'll be surprised, for example, to see this defendant get the death penalty, if for no other reason than that he was a minor when he was captured.

And the question is, what did we do in these cases? Did we try Timothy McVeigh and Terry Nichols as enemy combatants in a military court? Of course not. What about dealing with Waco or Ruby ridge? How did we defeat the mob? What about the mexican drug cartels?

Hal:

No one has ever suggested that there was much evidence that McVeigh or Nichols were working for another country or group or organized terrorists seeking to overthrow the government. Bin Laden never has made any bones either about the purpose of his jihad against the US or about the role of the 9/11 attacks in it.

Criminal syndicates are clearly out there to make money from their enterprises, not to overthrow governments.

Wouldn't precedent require that the detainees be classified as POWs? Also, I'm pretty sure we don't have any national historical precedent for the kind of war we're fighting, unless we go back to the days of fighting piracy in what, the late 1700s?

Michael:

There was little question that beginning at least in September 2001, Bin Laden and Zawahiri, with the aid and encouragement of the Taliban in Afghanistan, escalated their campaign of terrorism by attacking the US. The individuals who aided and abetted the attackers, saboteurs all, are equally guilty of sabotage. Sabotage is a violation of the laws of war.

When the US went after those aiding and abetting the saboteurs in Afghanistan, it believed it caught some. Those make up one group of Guantanamo prisoner being tried by Military Tribunal.

During the war in Afghanistan, we captured individuals on the battlefield who were engaged in a number of nefarious activities believed by the capturers to be violative of the laws of war(e.g., not readily or distinctively identified as combatants). These folks are another group of Gitmo prisoner subject to military tribunal.

The third group in Gitmo are, in fact, prisoners of war. They are being held in accordance with the Geneva Convention. Until hostilities are over, they need not be released. Unless they participate in crimes while POWs, however, they are not subject to proceedings by military tribunal.

Hmmm. Certainly not the *full* might of the US armed forces, but then there's that problem of the mexican civilians, not to mention the pesky mexican government which would make such fantasies extremely complicated. Still, one only has to look to the booming success of the Columbian cartels to get a hint as to how the military biased strategy have worked out so far.

... and, I would point out, that we don't seem to be able to do much in the way of combating them with military initiatives, either.

I don't believe the Mexican drug cartels have had the privilege of facing the full might of the United States Armed Forces, but if they ever did I don't believe they will fare as well as they have against law enforcement.

... and, I would point out, that we don't seem to be able to do much in the way of combating them with military initiatives, either.

A point not lost on the civil libertarians...

We've also had quite a bit to do with organized crime and drug cartels which seem every bit as nasty as terrorists. Not to mention white christian separatists, christian militias, etc.

In those cases, these groups were inside the US, under the jurisdiction of civilian law enforcement*. Not so with Al Qaeda militants in Afghanistan and Iraq.

Are we just going to have to make Guantanamo a heck of a lot bigger? Start chucking the criminal court system, bring in the military and treat it like we're fighting countries?

That wasn't ever my position, I was merely pointing out that history provides examples of war conducted against non-nation states.

(*)I'm not familiar with the Mexican drug cartels, but I don't think we've been able to do much in the way of combating them with law enforcement initiatives.

Yes, I understand that. We've also had quite a bit to do with organized crime and drug cartels which seem every bit as nasty as terrorists. Not to mention white christian separatists, christian militias, etc.

And the question is, what did we do in these cases? Did we try Timothy McVeigh and Terry Nichols as enemy combatants in a military court? Of course not. What about dealing with Waco or Ruby ridge? How did we defeat the mob? What about the mexican drug cartels?

Are we just going to have to make Guantanamo a heck of a lot bigger? Start chucking the criminal court system, bring in the military and treat it like we're fighting countries?

Somehow I don't think that's even close to the correct answer. Sure, the military is a component, but I would argue that it's not even a *major* component in the issues with non-state actors.

Even terrorists. Certainly not for countries which weren't even terrorist countries before we invaded them, to be sure...

Hal,
There weren't always countries, we have historical wars between ethnic groups, city states, etc. Even in US history we have the piracy wars I mentioned above, the Civil war, and numerous native American wars where there was not clearly defined "country".

The overt hostility characterized by the spectacular tactics like the Khobar Towers, the USS Cole, and the 9/11 attacks on New York and Washington, DC were more than mere criminal activities. All of these events seemed to me to more seriously jeopardize the nation's safety than the organized drug trade, the mafia, or other international crime syndicates.

If any rules and procedures are breached in the military tribunal, the alleged offenders have appellate rights that can correct any prejudicial breaches.

One thing for sure, there are very competant and committed defense counsel representing the accused in these proceedings at no expense to them.

If BHO wins the election, as is distinctly possible, it will be interesting to see what he does with these folks, and what the results will be during his watch.

Then we can compare and maybe contrast.

We shall see.

I have, for the defenders of this "process", a simple question:

Who among you are willing to be prosecuted, even for a crime as simple as jay-walking, under these rules?

Who? Who? Any takers? No caveats, now... Just who is willing?

Having said that, the point is simply that even within a military tribunal - regardless of whether you hold my view of the affair, or Michael Goldfarb and Bill Kristol's view of what this struggle is all about - there are rules to be followed. The issue is that, even within the framework of a military tribunal, such rules are not being followed. Worse, the issue of the judge which is what this post is about make the whole process seem more of a joke rather than anything useful.

Even in war, there are standards to be followed - or, used to be.

Their approach is somewhat at odds with historical precedent in times like these when our nation has been subject to unconventional warfare attacks at home and abroad.

That is when military commissions have traditionally been used. Military commissions are neither invented by nor unique to the "Bush Administration", see, e.g., ex parte Quirin.

Money Quote:

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct [317 U.S. 1, 28] of war, the status, rights and duties of enemy nations as well as of enemy individuals. 5 By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war his invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law [317 U.S. 1, 29] of war. It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged. We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial. We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury. It was upon such grounds that the Court denied the right to proceed by military tribunal in Ex parte Milligan, supra. But as we shall show, these petitioners were charged with an offense against the law of war which the Constitution does not require to be tried by jury.