Kangaroo Court Beaver Bench (and What Alice Found There)

The title is about the mirth and merriment coming out of Guantanamo today pertaining to Canadian national Omar Khadr (the beaver being, IIRC, the national animal of Canada). This blog was really never intended to go “All Gitmo all the time”; indeed, there are better sources for that, notably the great Guantanamo Blog and Cage Prisoners, both of which I frequently consult myself. My interest is almost at a meta-level… what interests me almost as much as the subject itself is the [obscene] lack of interest in the subject on the part of most Americans, largely driven by a feckless celebrity driven, short-term thinking American media (especially its well-nigh worthless commercial broadcast media). This lack of interest in the media has created an opening for me to talk with a good many of the principal players in this comedy tragedy. While obviously the human element is critical (which is why I invariably try to ask specific questions about those who are or have been held as guests of our own American state), to be honest with you, I have almost as much outrage about what this says about us systemically– this “make-it-up-as-we-go-along-to-get-the-results-we-want-even-if-they-violate-every-principle-we-allegedly-stand-for” crap, whether on torture, or open-ended detention, or kangaroo courts, or spying on our citizens (and political opponents) is just not how the country whose legal system I have been proud to be a part of is supposed to behave. NOT. FREAKING. EVER. No expedient justifies it. EVER. If we have to fight our enemies with one or even both hands behind our back to ensure that our laws and principles are followed… then, so be it. Anything else is, dare I say it, cowardly.
Speaking of cowardly, handing off our dirty work to the CIA is an old story. The CIA in turn often hires contractors, such as in “the rendition program”, where a contractor was hired to outfit flying torture chambers; this seems, sadly, also consistent with “traditional” American practices (not that we’re proud of them, of course… but, as Trevor Paglen told us, the CIA was set up to do illegal things). Case in point… Jeppeson Dataplan, a subsidiary of Boeing was sued today by GTMO detainee Binyam Mohammed … amongst whose tortures included– I kid you not– having his genitals sliced up by our Moroccan allies… and in such condition, his “confessions” were used to implicate, among others, American citizen “enemy combatant” Jose Padilla. But I digress… getting back to our story…
At GTMO today, the military commission set up by the Defense Department to try one Omar Khadr (one of his now former attorneys, Rick Wilson, is interviewed here) has decided to dismiss the charges concocted by the Defense Department against Omar, on the grounds that Omar is not an “unlawful enemy combatant”, merely an “enemy combatant”. Why would they do such a crazy thing, you say? Well, our friend Candace tells us that the Circus of the Absurd Continues, and relays an e-mail from one of Omar’s lawyers Muneer Ahmad:

As you have probably seen by now, the military judge in Omar Khadr’s case dismissed the charges against him on the ground that the MCA gives the commissions jurisdiction only over “unlawful enemy combatants,” and the CSRT established only that he was an “enemy combatant.” The government has indicated its intention to appeal this ruling–it has 72 hours in which to file a notice of appeal–but the Court of Military Commission Appeals has not been established. So, the government will be filing its appeal with a non-existent court.
Par for the course at Guantanamo.

And Candace goes on to tell us: As an astute blogger on Salon noted: “This administration even fucks up at fascism.” Candace also provides a link to the Military Commission ruling here.
Ah, the irony. Like our readers know already, Omar could well have been long ago deemed a beneficiary of “belligerent privilege” (or belligerent immunity)… to wit, soldiers in a combat situation are ordinarily entitled to kill their adversaries, without being subject to murder or war crimes charges; for a little background on that, see our interview with former United States War Crimes Ambassador David Scheffer. Hence, for purposes of trying Omar, a determination that he is “merely” an “enemy combatant”… says nothing as to this question of belligerent privilege… Indeed, he might well be entitled to it, but Congress did not empower the military commissions with the power to make such determinations! Hence, Omar must first be determined to be “an unlawful enemy combatant”… which hasn’t happened yet. And may never happen.
As strange as it seems, this is not an improper ruling: I have argued it, and Josh Dratel asserted it might have applied to David Hicks… and now, perhaps the military itself sees it this way.
Or, perhaps, Karl Rove has now decided that this is just not a good time for show trials, and hence, this is as good an excuse as any to throw things on the back burner, while continuing “Operation Hold People for No Reason So that the Rubes Believe We’re Tough on Terror” in its course.
Hey, Omar Khadr’s family isn’t exactly popular in Canada, so it’s not that hard to see why an Anglo like Hicks was a bigger cause celebre in Australia than Omar is or ever will be in Canada; the Maher Arar rendition case, by contrast, was a huge deal. Well, what can you say? The flying fickle finger of GTMO fate… who knows where it will point to next? The only thing we know for sure is that our ongoing national disgrace in Cuba will almost certainly be around at least another 596 days, when another ongoing national disgrace is scheduled to come to an end.
Update: The charges against Salim Hamdan were also dismissed by the military commission on the same grounds.
Curiouser and curiouser. The same week the President seems to indicate a willingness to reach a global warming deal, his military commissions behave in a manner that appears… lawful? Is this all some sort of calculated PR/political maneuver? Well, you’all know what I think…