Posted by MataHarley on 15 June, 2008 at 7:11 pm. 14 comments already!


We didn’t have to wait long to see what’s coming. Defense attorney’s are gearing up for fresh battles, and prosecutors assume they are going ahead with military commissions as planned. Without clear due process and legal guidance, it’s as if the process were a severed earthworm, with both halves crawling off in opposite directions.

Tho it was made abundantly clear the concurring justices viewed the Military Commissions Act as un Constitutional, the opinion does not address the fate of the CSRTs/military commissions that were created with Detainees Treatment Act. Are they necessary anymore? Are they legal proceedings in the court’s eyes?

“It is an open question whether the military commissions, as they currently exist, satisfy the requirements of the Constitution,” said Michael Dorf, a law professor at Columbia University.

The military lawyers said they would use the Supreme Court’s 5-4 ruling to argue that if detainees have the right to habeas corpus, they are also entitled to other constitutional protections. (emphasis added by MH)They say the Constitution would bar the planned trials, asserting that legal procedures at Guantánamo violate basic legal protections.

The lawyers cited commission rules that permit hearsay and evidence derived by coercion as examples of commission procedures that they argued would not be permitted by the Constitution.

“It no longer makes sense for the government to pursue these cases through military commissions,” said Lieutenant Commander Brian Mizer, adding that he would quickly press a federal court challenge on behalf of his client, Salim Hamdan, a former driver for Osama bin Laden. Hamdan is scheduled to be the first detainee to face a commission, now set for July 21.

We’ve now moved beyond “basic” Constitutional rights to upcoming demands for full Constitutional rights by defense lawyers.

And the prosecutors? Knowing only that they face added review of their past, and upcoming commissions, they otherwise appear to be shrugging their shoulders, anticipating business as usual.

Asked for a reaction to the defense’s assertions Friday, Erik Ablin, a Justice Department spokesman, again provided the statement that asserted that the military commissions would proceed. He added that the government would respond “though its filed pleadings” to any specific claims.


Through a spokesman, the chief Guantánamo prosecutor, Colonel Lawrence Morris of the U.S. Army, said he did not believe that the ruling “should slow the progress of the commissions process.” He added that he “looks forward to charging additional individuals while moving forward on those already charged.”

Prosecutors are expected to argue that the Supreme Court’s ruling, in the case of Boumediene v. Bush, did not suggest that detainees have broad constitutional rights. They are also expected to say the federal courts should not hear a challenge before a conviction.

Since the purpose of Boumediane v Bush was in response to these pending cases, booted out of federal courts by MCA, the Supreme’s did not address the military trials process in their opinion. But one has to wonder if they could be so anal as to not see the chaos that would ensue with an opinion that shrouds the legal process in fog.

Defense lawyers are not having any problems picking up on the plethora of opportunities.

Commander Suzanne Lachelier, the lawyer for one of five detainees charged in the terrorist attacks of Sept. 11, 2001, whom prosecutors said they hoped to bring before a commission in September, said that because of the Supreme Court ruling, “there’s just no way the government can proceed on the course they thought.”


Douglas Kmiec, a constitutional-law professor at Pepperdine University, said federal courts might stop the commissions from proceeding while considering what he said were serious questions the defense lawyers were raising.

“The argument has potential,” said Kmiec, who was a Justice Department official in the Reagan administration.

He said the Supreme Court’s ruling did not categorically declare that the military commissions should stop. But, he said, the decision “certainly invites legal challenges.”

It’s not just lawyers. Captain Keith Allred of the U.S. Navy, the judge for Hamdan’s commission, postponed his decision pending the SCOTUS opinion – saying the justices’ decision “may well change the tenor or conduct of the trial.” Which begs the response, change the tenor to what?

Unlike Col. Morris above, the defense attorneys do predict a slowing of the Gitmo war crimes process while the judges review claims that the proceedings did not pass Constitutional muster. Or, as the defense attorneys promise, they plan to use the decision “to mount new attacks on the government’s war crimes prosecutions that stall”, or even stop, trials. The process could now be tied up for years as it bounces between military commissions and federal courts, blind to who actually has authority.

Perhaps the single best indicator of the legal mayhem about to commence comes from Michael Berrigan, deputy chief defense counsel for the Guantánamo cases, pointing out that the rejection of the Constitution, as it applies to these detainees, is no longer valid.

“Now,” Berrigan said, “the battle lines are: Exactly what are the protections?”

What indeed….

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