David Kris: Our Only Military Commission Convictions May Be Illegal
I was interested in one particular detail in David Kris’ testimony before the Senate Armed Services Committee hearing on military commissions the other day. He said that we probably couldn’t charge and try people with "material support for terrorism" in military commissions.
There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.
I’ve always thought the "material support for terrorism" to be a fairly arbitrary crime. That’s particularly true given that Eric Holder, back in his high-priced Defense Attorney days, got powerful white corporate executives off with no charges after they knowingly supported right wing terrorist violence, but as Attorney General, Holder recently oversaw DOJ win 15 year penalties on Muslims who claimed to believe their donations had supported charity.
But Aussie Lawyer reminded me of something more important.
Two of the only people (maybe the only people?) who have been convicted thus far in our
kangaroo court Guantanamo military commission system are David Hicks and Salim Hamdan. The charge both were convicted on?
Material support for terrorism.
Of course, both have served their sentence and been freed, so I question whether either will challenge their conviction based on Kris’ statement.
But the current Assistant Attorney General for National Security seems to be suggesting that the only two convictions the Bush White House got from his military commissions would not hold up under appeal.
The question of whether or not something is legal or not has become irrelevant in our time. What matters now is the power to make things go your way.
that’s a great point foothillsmike, bush has made it so anything a president wants to do becomes legal but that virute alone and obama has bought into this depravity
good times, good times
For those who are able to recall, this held true for Nixon as well. The only difference is, at the time there were honorable men and women in the Congress, in both parties, who were willing to call Nixon on his excesses.
Now, not so much.
You also seem to be forgetting, with respect to Hicks, that his was not a conviction but rather a guilty plea brokered, IIRC, by Cathie Martin or some other skank working hand-in-glove with Deadeye Dick Cheney in an ultimately futile attempt to help support the now-former PM of Australia (a big supporter of the Rethugs’ war on browner people) for his then approaching election. You might also remember that a big condition of Hicks’ guilty plea was that he keep his mouth shut (at least until after the then-approaching Aussie elections) about his torture at the hands of the Americans (and, likely, the Aussies, too).
You cannot plead guilty to something which is not a crime. A fundamental of Anglo-Saxon law, you know.
A decade ago, that argument might have worked. With the history of the last eight years and the ongoing practices of the current administration, that argument has lost more than a little of its former grandeur.
Habeas corpus is a fundamental of A-S law, too, you know — and look what’s happened to it. We’re on our second president who thinks it is fine to say “Sure, so-and-so was found not guilty, but that doesn’t mean we have to release him.”
I wish Obama would explain how he arrived at that.
I don’t think ANYTHING those commissions do will hold up on appeal. The goal of ObamaCo is to keep cases out of real courts at all costs. It is unclear to me if they can actually accomplish this or if the idea is to delay until ObamaCo’s agenda is further along.
Rules of evidence alone will make most of the cases unworkable in a real court.
Oh what the hell: Just torture them until they plead guilty in from of a real judge.
Boxturtle (Just make sure the marks are gone before the court session)
Thanks for linking this EW. MCs have been on my mind, but I didn’t realize that Kris testified or that Congress is seriously making any progress on legislation.
I know WO and others aren’t crazy about Kris, but he’s one of the few lawyers from the *Dept of Law* over the last few years that I, (for my personal opinion) find to be candid and reasoned. But the overall content of that statment is very depressing and troubling.
I think one of the few places where decency grabs a moment of sunshine in it is where he says they need to sunset the bill. I am probably reading in credit that isn’t due, but it reads to me as if there are two baseline pleas competing with each other in the statement. The one is the pleading, we’ve screwed things up so thoroughly there’s no real and decent way to ever fix what we’ve done for a chunk of cases, so please please let us just shave the pigs ligs as well as lipstick it, slap a wig on, and all pretend that there’s no bestiality involved with what happens next. The other, plea competing with the “let us dress things up and pretend they are different than they are so we can get them over” plea, is the fainter but more desperate, “but please God stop it from going on forever, please God don’t let this become who we are instead of what we have to do to deal with the mess we have.”
The problem is, how you deal with the mess IS who you are.
that should be our slogan
a minor quibble: in gov’t one is required and restrained by position and law as to how to deal with some problems; for example, a Dem president will more likely delegate to the AG many issues which a Repub president might wish to control, but in any event the DoJ runs cases, not the prez.
I’m not sure I follow what I said that you are responding to ?
My comment was on Kris’ testimony and positions on Executive decisions re: the commissions and legislation/language they want to see – so I’m kind of lost on running cases. ?
And here’s more, in addition to this latest excellent article, EW.
Greenwald has highlighted this McClatchy report on one of those terrists the Pentagon says left Gitmo only to return to the battle-field.
Greenwald’s article (he asks we read the McClatchy one first) is here.
Hope this isn’t a dupe. Haven’t read everything here yet.
*grump* We grab the Gitmo detainee that best illustrates OUR point (We have the wrong people locked up and we don’t care) and the GOPers grab the detainee that best illustrates THEIR point (These folks are DANGEROUS) and we parade them around to the blogs and the newsoutlets.
Both sides have points. Letting a Jihadist back on the streets is bad. Keeping an innocent person locked up with no access to the courts is worse.
I still think the solution is to put ‘em in front of a real judge, with real lawyers. When the judge releases a jihadist (and he certainly will release more than one), we watch them just like we watch the jihadists who are currently running around loose.
Boxturtle (Still betting that ObamaCo will go the POW route)
One thing that isn’t being discussed much, I guess because it is a complex topic and involves an area we have been able to take for granted for years, is how all this New American Bipartisan Bush-Obama policy will and should be viewed by all of the various nations where we have SOFAs.
Basically, their SOFAs that are reliant on US law being applied to prevent abuses of their sovereignty and citizenship by US forces, are now pretty much authorizing US forces to kidnap people from their nation and disappear them into a system that hands out amnesty for torture and allows for depraved treatment without recourse. And that is littered with a few shallow, unmarked graves as well. That’s the open and public acknowledgment of what our President and our Congress support for this nation. It’s so open and so public that at some point “allies” with our bases located on their soil, under the assurances of SOFAs, might actually think about what their SOFAs really mean, now.
I’d never thought of that. But as soon as I did, I thought Okinawa. This is just the sort of ammo the locals need to throw us out and that’s an important base.
And it’ll likely apply to other agreements as well.
Boxturtle (Hillary has got to be unhappy having to deal with that)
Okinawa is being deemphasized. There is a huge build-up in Guam. Maybe that’s part of the reason.
Okinawa is Japanese and the locals have been trying to get the US off the island for decades. Guam, otoh, is an unincorporated territory of the US. We treat the Guamanians just as shitty as we treat Okinawans.
Here’s one of the return-to-terrorism folks that the U.S. released.
Well, this morning one of my conservative acquaintances posted a dissatisfaction with Obama poll. My first thought was “OMG”. My second thought was “if this acquaintance only knew how close to dissatisfaction I am”.
I would feel better having a list of politicians in hand who have proven by action that they care about our constitution and accountability as far as criminal behavior in our gov’t. This list will be my focus. Obama is better than McCain/Palin but is not the cure for the foundational issues plaguing our nation today.
I would just like to pop in under the guise of Captain Renault and say how unbelievably shocked I am that the Bush (now Obama) military commissions may have produced improper and illegal results. Who could have imagined?
Oh, and what Mary said @8.
*pushing a stack of chips*
Your winnings, sir.
Ms E Wheel – A point in clarification which strictly speaking doesn’t seek to diminish the validity of your main one:
First, bear in mind — as you note — that the convictions of the Muslim “charity” supporters in Texas were obtained in federal district court, as distinct from the forum which issued the ‘convictions’ of Hamdan and Hicks.
On that basis alone, Kris’ testimony doesn’t seem intended to apply to the Texas convictions. Moreover, the last sentence in your quote from Kris’ testimony supports this distinction:
“material support charges could be pursued in Federal court where feasible”.
Second, what Kris envisions is using an ‘inchoate’ crime that appears in the U.S. Code, to substitute for an actual crime that also appears in the US Code but may be — by implication of his having raised it on his own in his testimony, probably is; IMO absolutely is — unavailable for prosecution in military commissions and other forums of that ilk [assuming Article II powers allow for the latter — a big assumption], and thereby succeed in overcoming some impliedly ‘technical’ impediment and/or legal procedural defect in prosecuting the latter where there isn’t a state of war, ‘proper’ or otherwise.
An analogous problem arises from time to time in the ‘regular’ court, both federal and state. It’s come up a few times in my practice, on the defending side at least, and as well I’ve heard and read about it coming up in other cases in which I wasn’t involved. I can’t really comment on any particular one in the latter category, because it’s always possible there were peculiar problems and choices and arrangements involved that might have muddied the procedural waters [in something like what seems to have happened in the Seigelman case, where the two defendants failed to raise the statute of limitations when they first could have]. But as to the few where I’ve been involved, I’ve always dared the prosecution to try to take the case to a jury knowing my client, with others where there were others, would raise a preliminary objection and pursue it as far as necessary on appeal. And in each of those few cases, the prosecution backed off, or at least away from the conspiracy charges.
There’s important legal theory behind this approach — at least I think so, and I know my clients who were involved and affected directly agree with me, as did the attorneys acting for other affected clients — which Kris may only know theoretically, since he is not now filling a role that puts him on the firing line, and so far as I can tell only did so briefly and perhaps just incidentally at any earlier stage of his career. I don’t propose to go into that theory unless you think it might be important to this discussion, because it might be a bit weedy.
Oh, I know that they’ll still charge them with material support in court. But the harder it gets to charge it anywhere, the happier I’ll be.
Not a specific continuation of anything you have put up, but some generally or generically related points.
1. In the habeas cases, the issue of “combatant” has been of necessity kicking around and different Dist Cts are saying different things, but several pretty conservative judges have already thrown out providing material support, unless it has a lot of direct participatory flen on its bones, out as the standard for being a “combatant.” So Kris is partly admitting the existing problem – no habeas grounds for holding “non-combatants,” and yet … we’re in essence claiming that they can be tried and convicted for something that doesn’t even rise to the level of allowing for their continued detention in a habeas proceeding.
2. Not to get too far into the weeds either, but this is pretty important. Despite the conflation of battlefield necessity blather with the commissions under the MCA, they really aren’t relying on those martial law battlefield exigencies for the commissions authority (since they aren’t taking place in battlefields and exigencies would somehow have to involve 6+ years of ho humming around first, this is pretty self evident). That leaves, under normal laws of war, only one other situation for commissions to have validity – that is, with respect to solidiers. Our and ‘theirs” to the extent there is a discernable, definable “theirs” in a war against a feeling. Looking, however, to the AUMFs vs the war on feelings, even that AUMF jumps off the cliff into “aiding” aspects bc no one had a good feel at that time for what they were really facing. So the AUMF is to engage militarily with “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” Still, the linkage there is aid directly with respect to the attacks on 9/11.
3. Then you get to someone like an al-Libi or a Zubaydah. Assuming that the facts are that neither of them was a member of al-Qaeda or the Taliban, and neither of them provided aid to al-Qaeda to effectuate the 9/11 attacks and neitehr of them provided harbor to al-Qaeda after 9/11 (and in the end, those may not be the facts, but I think they very arguably may be what you have) then you have a real, huge, question whether there is any crime for a commision to charge them with and if not, then what? I don’t just mean the “oh, then you need to release them vs. the OMG, terruhistterruhistterruhist, forever detain them at GITMO or just shoot them” aspect of then what, but the whole panorama of what it means, the things we did and the lack of accounability for what was done.
4. Kris making the argument on conspiracy being a replacement for material support as a COMMISSION triable offense is, to me, very off unless we are making the commissions something they were never intended to be under the laws of war. This is a point, btw, that Justice Stevens (the guy with acutal Nuremberg experience) already made in Hamdan. Kennedy as the swing vote on the outcome in Hamdan expressly did not join in that section of Steven’s opinion and for the resolution of Hamdan, Kennedy did not have to take a position on that conspiracy issue. Thomas, from all his years and wisdom as a military man, did yammer on about why he disagreed with Stevens on the point, but it is pretty out there IMO for Kris to try to claim that: of course, the commissions have conspiracy even though they don’t have material support. And he does parse around on that point. But it will be a fundamentally BAD BAD BAD decision to go there and I’m physically affected to see that card so casually played in his statement.
I guess I’ll stop there – as good a place as any.
Mary, I’m really glad you wrote your point 4, because when I read this, I was quite alarmed, and I thought it meant just what you’ve said:
To me, that just says they are going to try to scam the system with prisoners they could not convict in a court of law. A lot of those prisoners are going to be the most vulnerable … or the entirely innocent. Or even the relatively innocent.
To me, that is a despicable statement.
Good points, and you and I both know you’re just scraping the surface. Maybe fearless leader could consider clearing a room for a full knock-down drag-out run at the entire conception around military commissions and indefinite detention … no, wait; okay, ANOTHER room.
What, we don’t do that regularly???
providing material support…
What is the required mental state? Knowingly? Intentionally?
Blue Texan has his regularly scheduled post up on the front page if you’re ready: “Jim DeMint is Latest Republican to Compare Obama to Hitler”
Old School: “It ain’t over ’til the fat lady sings.”
New School: It’s over when Rifkin’s name appears on the minority witness list.
Wowser… David Cone is on the good gal list in support of our potential
In a few weeks, it’ll be the ten anniversary of his Perfecto against the
Hw was one of the lead Players’ Union representatives during the 1994 Major League Baseball strike.
Don’t get me started on the 1994 MLB “strike”. First in January the owners illegally withheld $8mn in contractually-obligated payments to the union for pension benefits, when that was more like real money, screwing thousands of retired players and threatening to screw the future for hundreds more; then through the spring into July the owners kept trying to use payment of those funds, which by agreement and law belonged to the union and players, as a means to scrap the existing collective agreement; meanwhile the owners worked their buddies in Congress to screw around the edges of their bogus claim to exemption from antitrust law, not at all incidentally compromising a whole slew of long standing antitrust investigations and prosecutions in unrelated industries, benefiting large corporations from Microsoft to Wal-Mart by disabling their competitors from using laws on the books to ensure fair and competitive business practices; and finally Don Fehr was able to get even reflexively hard winger types like David Cone to understand what ownership was up to extended beyond screwing pensioners and the union and the players to the point of threatening critical underpinnings of U.S. laws to try to ensure corporate accountability; and even then the historical evidence and a lot of observers, me included, suggested that the owners would have backed down if the leading contenders for the whirled serious were say the Yankees and the Dodgers, rather than the Jays and the Expos, the latter of whom was in the throes of running away and hiding from the entire National League and the former of whom had clearly established itself in a position parallel to the Bosox of today.
Cone’s a witness because on this one narrow area he is able to connect Sotomayor to a particular instance of seeing through corporate greed and hypocrisy for the threat they constituted to a specific American value: the ideal of “baseball”, whatever that means.
On the other hand, it won’t take much for any minority member of the Judiciary Committee to take Cone down just about any other path beaten by Big Corporation, and, whoa Nelly, what he’s liable to say could make Senator Inhofe look reasonable.
OT: Coburn is denying he told Ensign to pay hush money (Rollcall via TPMMuckraker).
But that’s not the best part. Get this, Coburn won’t reveal what he told Ensign because:
I had no idea that communications with ordained deacons are privileged. That’s really good news for everybody here. I am an ordained deacon. No, really, I am. Everything you post here is held in complete confidence and I’m sure the lawyers here agree that it can’t be used against you in a court of law…
[Snark alert for the unwary… I am an ordained deacon, but I doubt that helps you much….]
“Send lawyers, guns and money. Dad, get me out of this.” — Warren Zevon, RIP
Ensign Still Bringing Dirty Laundry Home To Be Washed
By Zachary Roth – July 9, 2009, 3:33PM
It looks like John Ensign’s sexual dignity — which hasn’t been high lately — has plunged to new depths. His lawyer has just released a remarkable statement saying that Ensign’s parents paid the Hamptons $96,000 after he told them about the affair.
Did you see they are going to trot someone from the New Haven Fire Dept out?
If nothing else, you have to admire how the Republicans on the Judiciary committee put the EZ in slEaZe.
Actually, I saw two one the minority witness list from the New Haven fire department. It’s a comparatively short list.
Via Scott Horton here comes the link to this GITMO tour story here by Meg Laughlin, starting with the hospital:
Yeah – social hours filled by the efforts of endearing terrorists, desirous of letting their brothers share in the good experience.
Just to clarify, no, there is no /s – this is what they are saying in the article.
Those lines from the doctor and head nurse are truly deserving of Dorothy Parker’s brief review: “Tonstant Weader fwowed up.”
okay, which one of you bastards repainted the front room ???
I was a bit hung over, an I though I was in the wrong blog
I hope nobody
messed upcleaned up the basement
I had some stuff stored down there that you don’t want to know about …
so what, thought you could slap on a new coat of paint and we’d all become respectable or sumtin ???
If fearless leader were ever to move on, you’d think it would be to a consortium with the intials “DFH”.
Personally, having an NG tube put down my throat was one of THE worst experiences of my life. Seriously needed drugs not to rip the thing out. Had to use a lot of self talk…it was really, truly awful. I am sure others could talk about it…but it goes against something instinctive and everything feels emotionally out of control, it feels uncomfortable and “wrong”. I can’t imagine what this experience would be like at the hands of captors. I am sure others who have been through it could share. I have had lots of different procedures…one on the other end that was none too pleasant and that I was conscious for…but the NG tube topped them all for discomfort.
So I’ll go out on a limb and say you haven’t since opted for NG feeding while strapped in a restraint chair, even after you’ve already had a meal, just so you can “be a part of the good experience”
From elswhere in the article (the whole thing needs a read), discussing the PR trips emphasis on how great things are now:
NG = naso-gastric intubation, wavpeac? I heartily concur. Being intubated is one of the strangest experiences I’ve ever had, and I knew that the people doing it to me were helping me (plus they had given me a most cool shot of Demerol beforehand). There’s no question in my mind that force-feeding is torture, especially sustained over any length of time at all.
Has it never occurred to the tall foreheads like Admiral Walsh, who produced his sunny report for Obama in February, after a few days onsite and no interviews with the isolated prisoners, that if prisoners have gone on hunger strike, there might be a problem to be negotiated?
Is this the tube through the nose into the stomach?
I had that done once in an ER. They force one in and I tore it out again a couple of times before they threatened me with Court martial if I didn’t leave it alone (I was active military at the time).
Truly one of the most unpleasant if not torturous experiences I’ve ever had.
Yes. The doctors and nurses present are probably laughing at us because I think they all go through the procedure as part of their training. But for me, that was a nightmare. I didn’t tear the thing out; I lived with it for ten days (and you should have seen my nose by the end). That was five years ago, and I still have flashbacks.
Someone here might have seen a great British docudrama from, oh, at least twenty years ago called “Shoulder to Shoulder,” about the British suffragettes of a century ago. Those women went on hunger strikes in prison and were NG force-fed, with enormous rubber tubes rather as is done at GTMO, I gather — shove in brutally, rip out afterwards, blood all over the place. Sometimes the tube went into the lungs rather than the stomach (if you’ve been intubated, you know how that can happen at a critical moment, especially if the subject is resisting) and the patient drowned — all this was read into Hansard at the time.
Force-feeding is torture.
Mine was also in for 10 days. (an incarcerated hiatal hernia that had caused my stomach to become gangrene) I did have a humorous moment that blurs my memory of the pain. I had a catheter for my bladder, an I.V for pain meds, and the NG tube up my nose. I can’t remember why I got out of bed or what I was trying to do…but I ended up caught at the lower corner of the bed being pulled one way by my NG tube, and another way by the I.v and yet, another direction by the catheter. I must have had enough pain meds to find it hilarious because I started laughing at my predicament…and it was my laughter that made the nurse look in on me and help me get back to “baseline”. It still makes me laugh when I think of it…by this time I was on a morephine drip…the shot of Demerol made it barely tolerable. Barely. Yes it’s torture. In fact I had one of the nurses tell me…that she felt this was perhaps one of THE most uncomfortable medical procedures in existence. (it was validating and I had no trouble believing it…even the spinal tap did not compare).
Sure looks like there’s more than sufficient folks aged enough to turn this thread into an expanded edition of Torturepedia. I can think of more’n half a dozen just on me without breathing hard — but the thing of it is, I’m pretty sure that all the nurses and doctors etc involved were actually looking out of me, and I’m also pretty sure that’s not the case with your classic torture.
Intubation is one thing the medical profession hasn’t done to me yet, I’m pleased to report. It is a gruesome thing, though life-saving. Except when it’s used as torture.
Now while I have your attention, just wanted to share my concern about this:
US soldier makes case to remain in Canada
“The 27-year-old, a private first class in the Army based at Fort Carson, Colorado, served in Iraq in 2006. She said became disillusioned with the mission, and in February 2007, while on a two-week leave in the U.S., she crossed the border into Canada after she was ordered to serve another tour there.
“She lives in Toronto with her husband and three children, the youngest of which was born in Canada.”
Thanks for the update on Kimberly, fatster. We know about these cases, try to keep up with them here — no one does that better, though, than Laura or L-girl at we move to Canada, who has files on all the resisters and fights hard for all of them (with me and others always in support).
The Federal Court hasn’t responded well in the past, but I dunno — things may be changing. Our immigration panels, the first level through which the resisters pass, is execrably political and often embarrassingly ignorant, as of course our government is, in spite of a motion passed in Parliament to allow the resisters to stay. Unless the courts change their minds, the resisters will keep losing until we have a change of government. And I’m not entirely looking forward to the Dauphin (Michael Ignatieff), but anything’s better than Harper, and the Liberals have said that they support allowing the resisters to stay.
Robin Long, the first to be deported and returned to military trial in the U.S., got out of prison this week, after serving a year, I believe.
Thanks so much, skdadl. I just bookmarked the Move to Canada site and will look it over later. During the Vietnam debacle, thousands of us (I didn’t, of course, but certainly identified with all resisters, so am using ‘us’) fled to Canada. I guess Canada would get kinda grumpy about being the haven for resisters to US gubmint policies of going to war/going to war/going to war during one decade or another, but for many of us Canada was almost like a promised land. Sad to leave one’s native country, but in exile just because you don’t want to die as a result of horrendously stupid decisions your gubmint makes–well, what else can I say? Great gratitude to you and all Canadians who got hearts as big as your awesome mountains.
Gee, when I was permanently discharged from military service in 1975, the law read that I could not ever be charged with crimes committed in service unless the crimes were, also, felonies under civilian federal law. This applied to my referring to the commander in chief as a lying cocksucking war monger. I would now delete cocksucking as offensive to friends who are or may be or might be offended by the word, but that was what I called Nixon for 6 years straight and was threatened with a courts martial several times.
Now that bushcheney gang is convicting people who have never been in service and you think that shit is even possibly legal.
Impeach now, 5 months of war crimes is 5 months too many.
Biden is better.
Would appreciate civilian trial of Obama for obvious crimes and confinement at gitmo with the rest of bushcheneyrovegang.
emptywheel is great, please contribute as much as possible. I’m permanently disabled and I kick in every month but I need true reporters like emptywheel. Go to firedoglake to kick in. Thank you from a crazy Nam vet.
Hey there regulararmyfool, have not seen you name in comments before; thank you for your sentiments and charity to the cause. Join in more often!
Panetta Acknowledged CIA Misled On Interrogation Policy: Dem Lawmakers
I don’t know if this has been covered. Here’s the link to the House Judiciary Subcommittee Hearings that were held yesterday on MCA issues.
Three of the witnesses, Lt. Col. Vandeveld, and two others seemed to agree that ‘material support’ could not be a valid charge under the Laws of War and they also doubted that conspiracy would be valid, either.
They did not think there was anyway that the MCA could be fixed so that it would meet the standards of the Consitution and International Laws and Treaties. They argue that anyone convicted under the MCA would have a good chance of reversal and would be an overall detriment to the legal system.
Let me see if I have this right. The new reality is to be that ‘material support’ is a non-starter in a kangaroo court MC, but ‘material support’ under USAPatriotAct et seq. is still a viable charge in US Federal court, even if the alleged perp had absolutely zero awareness of any actual connection to the end-beneficiary alleged terrorist or terrorist-linked organization?
That’s about the size of it. Obama said that the MC would be used only for charges that could be brought under the Laws of War and they don’t include material support and conspiracy. But they can be charged in civilian courts.
I watched the Senate Armed Services Committee hearing on the MCA revisions this afternoon and was struck by the assurance given by Jeh Johnson to the Senators that even if they were not convicted, not to worry because they could still be held indefinitely under the legal authority provided by the AUMF….with periodic reviews, of course. (wink, wink,nod, nod, we don’t need no stinkin’ evidence or convictions to keep them as long as we want) McCain was the most upset with the notion that these terrorists would have the same Constitutional rights as an American citizen even though he was repeatedly assured that the detainees would not have all the same rights, just the ones that the SCOTUS has spelled out so far under due process. All the way through the hearing, the assumption was that all detainees were terrorists and guilty of terroristic acts. There was no consideration that some of them should never have been detained or had no convincing untainted evidence against them.
Some of them actually expressed concern that a terrorist would have his conviction overturned because the had not been read his Miranda rights when he was captured at the point of a rifle after a soldier had kicked down the door to his house. Well, it’s a good thing we have that AUMF for backup that says we can keep them locked up forever no matter what the courts do.
“Verdict first, trial after!” cried the Red Queen.
my take on the David Kris testimony is a little different but only in terms of emphasis.
from my reading, the implemented practices and policies instituted by the Bush clowns in the matter of counterterrorism prosecutions is such that the very “activities” (material support of terrorism) that they are holding up as evidence cannot meet the standard of traditional law of war offense, i.e., more evidence of inept policy-making.
the irony therefore isn’t so much that these people are being held on bogus charges in a gross mockery of a judicial system, but that the very apparatus set up to implement these clearly unfair practices is internally contradictory.
precisely the nature of arbitrary rule of law: the system from the policy on down provides the justiciable evidence itself of the system’s own inherent illegality and unfairness.
Go Team U.S.A.!
What possible reason can they have for continuing to hold military commissions, now that they’ve made clear they feel they have the right to continue to hold these people indefinitely? They already have their solution to the alleged problem of releasing dangerous terrorists, so what’s the point of going on with the kangaroo courts (which they’ve made clear they’ll only use for those against whom they don’t have evidence they can use that would be admissible in a regular court)?
If the Bill of Rights were up for vote before our present day Senate, I doubt that it would pass. There is real contempt for the most basic rights and protections from abuse of governmental powers. Watch that webcast of that hearing for awhile and you will see that contempt in almost every statement and question by the Senators.