Possible translation of “secret sentence”: He’s been sentenced to time served. We’re deporting him ASAP to a place where the government has promised not to hurt him.

Boxturtle (On their word of Honor!)

And, from Daphne’s update, the Judge also accepted the US claim that killing a uniformed soldier during a war is illegal.

And finally — and perhaps most significantly — Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side’s soldier in a war has never before been considered or prosecuted as a violation of the laws of war.

A military commission under this chapter shall have jurisdiction
to try persons subject to this chapter for any offense made punishable
by this chapter, sections 904 and 906 of this title (articles 104 and
106 of the Uniform Code of Military Justice), or the law of war, whether
such offense was committed before, on, or after September 11, 2001, and
may, under such limitations as the President may prescribe, adjudge any
punishment not forbidden by this chapter, including the penalty of death
when specifically authorized under this chapter.
Military Commissions Act of 2009

I think that the laws of war exist as the booklet put out by the Secretary of Defense.

Not enough fuss and objection gets made about this. I’m glad to see it highlighted as significant.

With regard to Al Qosi’s secret plea deal [which is only the fourth conviction since 2001 – half by plea bargain – of a “war criminal” via Guantanamo’s segregated “justice system,” from among the 700+ foreign citizens once detained there, more than 500 of whom have been released (most under Bush) uncharged and untried, without apology or compensation, years after being seized and locked away from public view or any independent judge or courtroom, despite the ongoing “armed conflict” in which they were all declared to be “enemy combatants” without benefit of the Article 5 hearing that the law of war and the U.S. law of the land require], Carol tweets:

On Qosi case, Law of War scholar Gary Solis, ex Marine judge, says he presided at 700+ courts martial “never heard of a secret sentence.”

About 4 hours ago via web

Gary Solis, speaking with Scott Horton in April about material support for terrorism (one of the American-manufactured “war crime” charges with which Al Qosi was persecuted):

Is “material support” a crime recognized under the law of armed conflict?

In my opinion, it is not, has never been, and should not in the future be considered a war crime. Until a 2008 Guantánamo military commission convicted Salim Hamdan of material support for terrorism, no American tribunal had ever prosecuted such a charge.

It is not mentioned in 1907 Hague Regulation IV, in any U.S. field manual, in the Statute of the International Criminal Court, the Statutes of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, or the Special Court for Sierra Leone. The U.N. Special Rapporteur on human rights concludes that it is not an offense under the laws of war, and the Congressional Research Service finds the charge is not supported by historical precedent. No multilateral treaty on terrorism requires ratifying states to enact such a war crime.

War crimes cannot simply be made up, as this one was by Congress in the 2009 Military Commissions Act. Custom and historical precedent are required to give a war crime legitimacy. “Material support for terrorism” lacks any of these indicia.

[…]

But as the U.N. War Crimes Commission says, the laws and customs of war are “rules of international law with which belligerents have customarily, or by special conventions, agreed to comply in case of war.” Although there are other definitions of “war crime,” material support of terrorism meets no element of the U.N.’s definition. In my view, prosecutions based on such a charge only add to the disrepute of American military commissions.

Scott Horton’s introduction to
his interview with Gary Solis:

Cambridge University Press has just issued Gary Solis’s The Law of Armed Conflict, a comprehensive and current treatment of one of the most controversial legal topics. Solis teaches at Georgetown University Law Center, and for six years he directed West Point’s law of war program. He is a retired Marine and was a company commander in Vietnam. I put six questions to him relating to some of the current controversies addressed in his book.

Gary Solis will be reporting about the Khadr & Al Qosi proceedings that he has traveled to Guantanamo to observe, at the website of the National Institute of Military Justice.

The history, tradition, and principles of the law of war (aka the law of armed conflict), and the law of nations of which it is a part, have now been willfully, recklessly, despicably repudiated in pursuit of unequal justice under law, by, first, our modern Presidents (of both Parties), then by our modern Congresses (under both Parties), which now take, rather than give, Executive Branch rules governing (or failing to govern) our armed forces, and by a modern military judge (Colonel Patrick Parrish).

Here, in comparison, is John Quincy Adams – a United States Senator who, in stark contrast to our contemptible modern Senators, respected and honored the law of nations and its reach and limits, upon which his proposed bill might impact – modelling how one follows “the rule of law” and the law of nations, in a March 3, 1806 speech on the Senate floor describing his proposed bill:

On these principles, thus equitable and moderate in themselves, and thus universally established, is founded every provision of the bill before you, so far as it implicates the law of nations. I have been fully aware that, although by the Constitution of the United States[,] Congress are authorized to define and punish offenses against the law of nations, yet this did not imply a power to innovate upon those laws. I could not be ignorant that the Legislature of one individual in the great community of nations has no right to prescribe rules of conduct which can be binding upon all; and therefore, in the provisions of this bill, it was my primary object not to deviate one step from the worn and beaten path – not to vary one jot or one tittle from the prescriptions of immemorial usage and unquestioned authority.

An MCA-created military appellate court is considering – has been considering, since January oral arguments – the same questions about the reach of the law of nations, and the law of armed conflict – in this case as they impact on the segregated American Military Commissions and their “war crime” offenses – because of the pending appeals of the two non-plea-deal commission convictions. It doesn’t speak well of that new appellate court (the Court of Military Commission Review) that, with only two pending appeals to contend with, along with a smattering of other work related to limited ongoing commission proceedings, it couldn’t come to a decision before the start of the Omar Khadr trial, more than six months after oral arguments were heard. Thereby leaving unenforced and open to continuing abuse the same profound principles and questions about the balance of power in our Republic that Military Commission Judge Patrick Parrish so casually discarded today at Guantanamo in the absence of a firm check from anything even remotely resembling an independent American judiciary.

As for our nominally-independent federal judiciary, here’s the plea that its highest court heard last Thursday (two days before the military defense counsel filing the appeal on Khadr’s behalf had to board a military charter plane for Guantanamo), after Khadr’s attorney (Jon Jackson) finally forced a D.C. Circuit panel into action last Wednesday, four months after all briefing had concluded on Khadr’s unresolved emergency mandamus appeal challenging the military commissions as unConstitutional:

Entering a brief stay of military commission proceedings in order to afford applicant [Omar Khadr] the opportunity to file and this Court to dispose of a writ of certiorari from the [belated D.C. Circuit panel] order below is the only way to ensure that Applicant’s important, novel, and substantial constitutional claims receive due consideration by this Court and that irreparable harm is avoided. See Hollingsworth v. Perry, — U.S. —, 130 S.Ct. 705, 709-10 (2010).

If a stay is not granted, Applicant’s right not to be put on trial will be rendered meaningless, a possibility that this Court recognizes as one of the few bases for its intervention before trial in a criminal prosecution. […] The government, on the other hand, would suffer the minimal harm of another relatively brief continuance of the proceedings – something that has happened numerous times previously in this case, including over a year-long hiatus at the government’s request. A brief stay is necessary to prevent irreparable harm and if a stay is not granted, the relief requested will be moot.

[…]

The Military Commissions Act of 2009 limits the jurisdiction of military commissions convened under its authority to non-citizen unlawful enemy belligerents. The uniqueness of that jurisdictional limitation in American military history cannot be overstated. Without exception, since the Revolutionary War, both the ordinary courts-martial system and the “law-of-war” military commissions, see Hamdan v. Rumsfeld, 548 U.S. 557, 596 (2006) (distinguishing law-of-war commissions from others), have tried Americans alongside aliens. In fact, Americans have been tried by law-of-war commission in every military action in which they have been employed since the Revolutionary War. (The underlying petition as well as a full petition for writ of certiorari has comprehensive historical citations that establish this point).

[…]

Applicant then shows, through historical analysis, that the specific limitations on military jurisdiction imposed [on Congress] by the Define and Punish Clause are the limitations imposed by “the Law of Nations.” That is to say, the jurisdictional limitations imposed by the Clause are as those that it imposes on the substantive limitation on Congress’s power to “define and punish . . . Offenses.”

[…]

It is therefore far too late in the day for the government to claim that some “practical need” justifies an alienage distinction that both this Court and the military have long rejected. For that reason, the jurisdictional provision of the Military Commission Act of 2009 violates the law of war, and therefore the limitation on Congressional power imposed by the Define and Punish Clause.

[…]

In light of the novelty and merit of Applicant’s underlying arguments, the requested stay of commission proceedings should be granted so this Court has the opportunity to consider the merits of Applicant’s arguments in an orderly fashion under its certiorari jurisdiction.

– Lieutenant Colonel Jon Jackson JAGC, USAR
Office of the Chief Defense Counsel
Military Commissions
United States Department of Defense

Dated: August 5, 2010

The next day, Chief Justice John Roberts and his colleagues refused Lt. Col. Jon Jackson’s request for a two-week delay, of the pending Khadr trial, that would’ve allowed him – Khadr’s lone remaining defense attorney – time to file for a rehearing of the slapdash one-page denial (inexcusably withheld for four months) of Jackson’s mandamus plea on Khadr’s behalf. A denial that had been belatedly issued only the day before (thereby succeeding in delaying all action on Khadr’s appeal until the Circuit panel was on the brink of being ordered to act by the Supreme Court, and Khadr’s trial was about to begin) by three members (Ms. Henderson, Mr. Tatel, & Mr. Kavanaugh) of the United States Court of Appeals for the D.C. Circuit – which has sole appellate jurisdiction over Guantanamo captives, in the absence of Supreme Court intervention.