How to Stage Manage a Show Trial

/in /by

Michelle Shephard reports on an effort Omar Khadr’s military lawyers are making to win clemency for their client. (h/t JL) Much of it focuses on the role psychiatrist Michael Welner, who testified that his interview with Khadr proved he’d never give up violence, played. As Jeff Kaye showed at the time, Welner’s report on Khadr showed an anti-Muslim bias. Khadr’s lawyers were able to rip Welner’s testimony to some degree.

Thus far, the defense has shown Welner didn’t read one of the studies he relied on for his Khadr profile, shown his work was not peer reviewed, and challenged Welner on his research methods: “Your sample size was Omar Khadr?”

But they’re apparently arguing that they were told not to challenge Welner’s expertise more generally (presumably to exclude his testimony), because if they did it would endanger the plea deal they had negotiated for Khadr.

In a 40-page motion obtained by the Toronto Star, Khadr’s lawyers argue that testimony from Dr. Michael Welner was “unscientific” and “designed solely to inflame and mislead the jury.”

Lawyer Army Col. Jon Jackson and Air Force Maj. Matthew Schwartz also claim that prosecutors threatened to revoke Khadr’s plea deal if they challenged Welner’s credentials as an expert witness.

[snip]

At a time when Guantanamo’s military commissions are under renewed scrutiny concerning the upcoming trial of the alleged 9/11 conspirators, one of the most damning allegations is a claim that the prosecutors had the convening authority’s permission to rescind Khadr’s plea deal, if defence lawyers tried to get Welner’s testimony excluded as unreliable.

In a separate memo, obtained by the Star, the convening authority denies any discussions or agreements were made with the prosecution. “Please provide a response limited to this allegation of prosecutorial misconduct,” states the March 29 memo to Navy Capt. John Murphy, Guantanamo’s Chief Prosecutor, written by Michael Chapman, the legal advisor to the convening authority.

So here’s what this suggests: The government made a plea deal with Khadr’s lawyers (eight more years, but after one year he’d be transferred to Canada, if they’ll take him). Then it had a show trial featuring a frothing psychiatrist arguing that Khadr would never give up his allegedly Muslim aggression. Normally, defense attorneys could easily exclude such testimony from a trial based on key scientific issues like peer review. But Khadr’s lawyers, allegedly, were put in the position such that if they wanted to preserve Khadr’s 8 year deal, they would have to limit their complaints about Welner.

In other words, the government made a deal: it’d release Khadr to Canada after a year, if his lawyers would pretend to go along with the trial at which a psychiatrist could make claims about Khadr’s innate violence, leading jurors to give Khadr 40 years. It wasn’t just the fake sentence: much of the trial was all for show. It was the appearance of antagonistic sides and the credentials of the frothing psychologist.

Can you imagine what fantastic frothing witnesses we’ll get to see in the 9/11 trial?

Update: Welner’s spelling and credential fixed, per JTMinIA.

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  1. Skilly says:

    Why even bother with a silly show trial. No one could possibly refer to this as justice other than in irony. Just release him and let’s move on.

  2. harpie says:

    Marcy, the doctor’s name is Welner, with an “L”–sorry, just thought that was important. Will go back to reading now.

  3. JTMinIA says:

    Two minor corrections, although the second makes a difference to me. His name is Welner, not Weiner, and he’s a psychiatrist (i.e., an MD), not a psychologist (with a PhD).

    I agree that he froths.

  5. harpie says:

    Khadr’s was a Show Trial Par Execellance [or however you spell it]. We even had a widow pumping her fist in the air at sentencing. Disgusting.

    As for the 9/11 trial, I’ve already got my Coliseum tickets, and know how I’ll vote:

    Thumbs Down!!

    [need I add: /s ]

    [PS: the links in the first block quote aren’t working.]

  6. Knut says:

    This is what comes of leaving almost all the Bush appointees in place. Not that Holder couldn’t have intervened at any time to put a stop to the travesty. Obama’s reluctance to root out the rot introduced by Cheney and Bush is a big reason why nothing has been done in the civil liberties area. These are people who have a vested interest in suppressing them.

  7. harpie says:

    Love this Welner response to Sageman’s criticism’s [from the Star article]:

    Welner: “(A) perfect wedding of the greedy ambition and presumptuousness of Sageman with a longstanding defence strategy of false charges against the government, the U.S. military, the prosecutors and theatre when the established procedure is unsuccessful,” he wrote.

  9. lysias says:

    Isn’t this like the deal that was struck for David Hicks? (Although in his case I don’t recall any psychological justification.)

    By the way, how does one get a copy of David Hicks’s book? It seems not only to be unavailable in this country, but also to be unavailable from Amazon’s outlets overseas.

    • Jeff Kaye says:

      Yes, the book is essentially blocked in this country, because there’s no publishing agreement here, or so I’m told.

      It can be brought from Australian-based booksellers, as here (no endorsement implied, you should look online for more, as any buyer will pay a pretty penny for the book, especially the expensive shipping).

    • harpie says:

      Yes to question one.

      From Andy Worthington , earlier this year:

      So at the start of 2007 the Military Commissions were back. From then until the end of the Bush administration, they again stumbled on from one disaster to another. Twenty-eight men were put forward for trials by Military Commission, but only three ever went to trial. The first of those cases was David Hicks, the Australian, and a plea deal had been arranged between Dick Cheney and Prime Minister John Howard of Australia. Hicks had been picked up on the radar in Australia — there was a movement around the injustices against him. So there was a deal that was struck that was supposed to help get John Howard reelected. It failed. But Hicks was “encouraged” to file for a plea deal, whereby he spent another six months in prison back in Australia, in exchange for admitting to “material support for terrorism” — which is one of the key ingredients in federal court terrorism prosecutions, but is one of the invented “war crimes.” It’s not traditionally been viewed as a war crime.

      See also:

      The Dark Heart of the Guantánamo Trials; Andy Worthington; 10/1/08

      [scroll down to Who’s pulling the strings?]

  10. DWBartoo says:

    “… the frothing psychologist.”

    Well, who wants to eat all that cake we’ll be getting without frothing?

    Bread and circuses. Oh, and drones to keep tabs on the “well-being” of hoi paloi when “government” concludes that “the people” ARE “the enemy”.

    Empires do NOT end well.

    Especially when embarked upon “endless war” … it affects reason, somehow, and such silly trifles as the rule of law, as an interest in actual “justice” … why it even affects the notion of humanity itself.

    ‘Tis appearance not substance that upholds the faith, that dresses the emperor and declares the nature of true wisdom … all that matters is …?

    DW

  11. Jeff Kaye says:

    Notice the venom with which Welner attacks his opponents, the threats to sue. He is quite the snapping guard dog for them, isn’t he. That showed in his op-ed in the Washington Post last December, answering an earlier article by another Khadr expert psychiatrist, retired Brigadier General Stephen Xenakis.

    In my article discussing the dueling op-eds, I linked to a Jurist piece by Andrea Prasnow that speculated upon why the defense experts had not testified.

    Though I didn’t give the exact quote it at the time, Prasnow was essentially right, and may hint to exactly what in the plea deal was so constraining:

    Although Khadr signed a sworn statement admitting that he was guilty, it is quite possible the mental health experts believe in his innocence as well. If they testified to that, Khadr’s guilty plea could have been declared “improvident” and Khadr could have been forced to go on trial. (Khadr’s plea agreement specifically states if the stipulation of fact – his detailed admission of guilt – is contradicted, his plea agreement can be withdrawn).

    Meanwhile, it’s worth remembering that Welner relied heavily in his testimony on the work of Danish psychologist Nicolai Sennels. Welner claimed that Sennels was “lauded” by the Danish Psychological Association. An email query I sent to the Danish Psych Assn was never answered. What I wrote at the time (link is above):

    Sennels is a racist ideologue, who uses psychological jargon to argue for the ejection of Muslims from Europe. He spews his views, based upon his work as a social worker and psychologist working with “antisocial individuals.” Despite the fact that he admits, “I did not keep statistics of any kind,” he believes he has enough evidence to conclude that “very few Muslims have the will, social freedom and strength of personality” to be integrated into European society.

    Sennels continues. “Many young Muslims become assailants,” he writes. “This is not just because of the Muslim cultural acceptance of aggression, but also because the Muslim honor mentality makes them into fragile, insecure men. Instead of being flexible and humorous they become stiff and develop fragile, glass-like, narcissistic personalities.” And from this, the Danish psychologist, “lauded by the Danish Psychological Association,” and Dr. Welner, concludes that the presence of Muslim populations in many Western countries means “the possibility that violent conflict will happen in Western cities all over the world is very great.” His solution: “draconian measures”; “shutting down Muslim immigration;” “tightening the thumb screws on integration”; “and perhaps even sending Muslims who proved themselves unable to adjust to our Western secular laws back to their countries of origin.”

    Any data stemming from the work of Nicolai Sennels is irretrievably biased and unusable. It is to the ever-lasting detriment of the U.S. armed forces that they used an expert who relied upon unscientific approaches and racist ideology to testify on the dangerousness of a Guantanamo prisoner.

    I hold out little hope that the Convening Authority for these kangaroo courts will rule for Khadr. But I am glad the defense has made this effort, throwing up a roadblock to the workings of this awful show trial machine.

    • skdadl says:

      The question does remain, I fear, if Harper is re-elected: will a Harper government bring Khadr back as per the plea deal? Don’t have the text in front of me right now, but as I recall, Harper’s response to it was ambiguous.

      • emptywheel says:

        I agree with you. I’m guessing that, now that Khadr really doesn’t have access to the law, he’ll get the purportedly fake sentence rather than the one he thought he was getting.

      • reader says:

        Yup. It was definitely ambiguous. And remains so. He’ll drag his feet forever, I believe.

        Harper has also resisted any attempts to discuss the modern tradition of responsibility to oversee the treatment of Canadians abroad. He has revived some sort of loophole about the prerogative of the throne in choosing whom to care about and whom to abandon.

        Good news: I hear today that the polls are looking like Harper’s majority is slipping out of range. Maybe it’s his constant harping on this “unnecessary” election thrust upon him while his main message is give him a majority or y’all won’t get what I am promising. Canada held hostage!

        Can’t stand to listen to or watch Harper anymore.

        • harpie says:

          I have tears in my eyes, I am so happy.

          Here’s a comment I made about Professor Arlette Zinck and Omar Khadr at one of Jeff’s posts in November.

          • skdadl says:

            Thanks very much for that. My worry is that the plea deal strangles other things Khadr can do, even when/if he is freed. I believe such conditions can be challenged in the courts in Canada, but we’re a lot of steps away from that right now.

            The plea deal also required him to submit to US interrogation during this year and to testify for the US gov against others. I don’t know whether any of that has occurred.

          • reader says:

            Thanks so much for all of that. I am reading it with delight. The court has been told he’s a fine, intelligent, kind young man. But no matter. Racist psychiatrists are more *pursuasive.*

          • Jeff Kaye says:

            Khadr is not getting home schooling, but according to the article, attorneys and paralegals help him with the college professors curriculum when they visit. Of course, he remains under “punitive” detention, and the article makes clear that they are in solitary much of the time. And that’s only if we can believe the camp authorities. The attorneys are stating that conditions are much as they were in the early days of Guantanamo, with an emphasis on isolation.

            TV time is spent alone, each man shackled by an ankle to the floor of an interrogation room, always under the watch of a special guard force implementing a Pentagon policy for “punitive post-conviction confinement.” That policy is still in flux, says a spokeswoman, Army Lt. Col. Tanya Bradsher, so the Defense Department won’t let the public see it.

            Read more: http://www.miamiherald.com/2011/02/27/2090624/inside-the-convicts-cellblock.html#ixzz1JzPF7i40

            I won’t believe anything the Pentagon says. Let the prisoners be interviewed by the press, then I might believe what’s going on. The attorneys are restricted in what they can say.

            • reader says:

              Thanks so much, Jeff. I think we are all trying to be so hopeful for him in spite of all contrary indications.

              This continuing insistence on punishment, solitary confinement, and shackling is simply barbaric and horrifying.

      • reader says:

        Thanks for the great links on this, everybody!

        I saw the story on the news as the trial was ending or after Khadr’s trial had ended. There was no implication it would stop.

  16. grimmlok says:

    Hrmm.. I knew this all seemed familiar…

    “The president of the court often acted as prosecutor, denouncing defendants, then pronouncing his verdict and sentence without objection from defense counsel, who usually remained silent throughout. Unsurprisingly, it did not follow the laws and procedures of regular German trials, being easily characterized as a “kangaroo court”.”

    http://en.wikipedia.org/wiki/People%27s_Court_%28Germany%29

  18. Nathan Aschbacher says:

    The very existence of this trial in this condition is proof positive that the government doesn’t make good on its deals. It violates its own laws, rules, and treaties with impunity.

    This is a show trial, so your only opportunity to possibly save your client is to put on the better show. It must be really hard for people in the legal profession to let go and own up to the reality that the rule of law is dead in thus country. It’s all just formality and pageantry at this point.

    Trying to protect some plea bargain is itself a complete failure to understand the situation you’re in.

  19. Mary says:

    @14 “Notice the venom with which Welner attacks his opponents”

    It looks a lot like proof that he’ll never give up violent rhetoric. ;)

    • DWBartoo says:

      Now I ask ya, lsls, what WOULD the empire of the United States be if it couldn’t destroy the planet several times over?

      The bluster, the organized mayhem, the human consequence for all who are too-small-to-matter which surrounds this question is all in good fun …
      (and, dare I say it, hugely profitable for some … what DOES a frothing psychologist go for, these days? It can’t be for mere peanuts, we must imagine, and “patriotism” makes great PR but hardly rates an expense account … ah, well, I’ve no doubt that Cass Sunstein and his ilk will explain it all to their own satisfaction in The Official History of American Democracy, which we will all be absorbed in, soon enough …)

      Violence.

      It’s as American as apple pie and Thanksgiving.

      Hard to imagine what this place would look like without it, might even be unrecognizable, in an un-exceptional kind of way, of course.

      ;~DW

  21. hcgorman says:

    Speaking of show trials things aren’t much better in federal court these days. In my remaining gitmo client’s habeas hearing in December the government’s position was that my guy should be held forever because he was arrested at the same guesthouse as Abu Zubaydah. In Abu Zubaydah’s case the government has admitted that after waterboarding him 100 or so times it seems he wasn’t who they thought he was….sorry about that Mr. Z….but anyway the judge announced that just being in the house was enough for him to deny the writ but the government put on a show trial trying to show that my client went by a nickname and that the nicknamed belonged to a known bad guy. They had two “detainee” statements linking the nickname to my client. After four days of hearing and just before the judge was set to rule the government pulled the statement from detainee witness number 1-because they had not given me certain documents that went to that detainees reliability. That left one detainee witness, a man the government claimed never complained of torture or mistreatment. I had nothing to rebut their characterization of this man as being what could have been the only man at Guantanamo not to have complained of torture. I asked for a new trial because of the evidence pulled and the judge said no and denied the writ for my client because the remaining detainee witness was reliable. Lo and behold that star witness-the only man at Guantanamo never to complain of being tortured- took a plea in the commission last month and the military released a bunch of court documents from his case onto their website-seems the government was not exactly being truthful about this guy not complaining-he alleged that he was subjected to enhanced techniques right at the same time he said the nickname belonged to my client. MY MY. I filed another motion for new hearing- government says I should quit whining as it doesn’t matter anyway. Sad part is that it probably won’t matter….but I am whining anyway.

    • reader says:

      It does matter. It’s not whining; it’s the rule of law. Calling you a whiner is beneath contempt and should be way beyond the pale. They are disgraceful.

      Thank you for your most dilligent service.

      If the world were not turned completely upside down you would win this debate easily and government officials would be sacked and charged.

    • skdadl says:

      Candace, thank you so much for your work. I don’t know how you stay calm and keep going, but you are one of the heroes, and a lot of us will try to keep the record.

    • powwow says:

      Please keep on ‘whining,’ Candace. Damn well keep on whining until those self-serving, self-important usurping abusers of government power hear you in their dreams. I’m counting on it. Especially while powerful, independent federal judges like Stephen Breyer, with every reason and responsibility to know better, remain inexcusably indifferent to the profound and dangerous consequences of their failure to act to end the Guantanamo-born presidential justice system in this nation.

      That new presidential justice system of indefinite detention and occasional show trials is an ad hoc, arbitrary system in which the lawyers for the President’s prisoners – if and when such volunteer attorneys can be found, and are deemed acceptable by the presidential jailer – are all muzzled by the presidential branch of government, even when those prisoners through their lawyers are finally – years late – granted a brief audience before a federal judge in one district of our independent Judicial Branch of government.

      That one brief audience before a single district judge now takes place under constraints, imposed since 2008 by the sole appellate court overseeing that district, which have basically reached the point of absurdity – no government proof of fighting by the prisoner needed, no government proof of enemy, or “associated,” group membership by the prisoner needed, no government proof of command-ordered activity by the prisoner needed, etc., etc., for these non-uniformed “wartime” captives.

      And that one habeas corpus merits hearing allots the long-abused, foreign, (asserted, but unproven) “armed conflict combatant” prisoners of the American president – “combatants” never given, nor lawfully relieved of, their default POW status under the international law of armed conflict and the Senate-ratified treaty law of the land – their one and only opportunity for an American hearing (though a hearing now evidently unaccompanied by a remedy, with Justice Breyer’s concurrence) that might belatedly – if the judge has integrity and isn’t overturned – impartially assess the merits of their “armed conflict”-justified, presidentially-ordered detention.

      While the years pass for the presidential prisoners, the muzzling of their volunteer attorneys and the oppressive detention conditions of the prisoners themselves both ensure that people like Supreme Court Justice Stephen Breyer can continue to live in blissful, irresponsible ignorance in their ivory towers, with no unpleasant reports from said detainee lawyers, not to mention the non-English-speaking detainees themselves, to disturb them in their perusal of the daily newspapers.

      Another of the many unsung lawyers for our presidential prisoners – laboring, like Candace Gorman, Sabin Willett, and Omar Khadr’s many military and civilian attorneys, in thankless obscurity in lonely defense of the principles which founded this nation – is Michel Paradis, an attorney employed by the Pentagon’s Office of Military Commissions to defend one of the handful of charged “war criminals” among the Guantanamo presidential prisoner population.

      I applaud and admire Michel Paradis and his team for producing this excellent March 15th reply in the CMCR Oral Argument Round Two briefing for the case of their Guantanamo Commission-convicted client Ali Al Bahlul. A reply that the en banc Court of Military Commission Review made no provision for, and which Paradis pulled together in the five days between the government’s response on March 11th – which included its specious Seminole War defense, and for which the CMCR gave the government almost three weeks longer than Paradis to file a brief replying to the two questions the CMCR asked in January – and the oral argument held on March 17th.

      Because the role of our federal legislature has essentially been outsourced, by the representatives of “we, the people,” to the operators of two national political fundraising machines – specifically, to the incumbent-appointed (as opposed to citizen-elected) leadership of two Congressional fundraising groups known as “Parties,” accountable only to their wealthy funders – there are vanishingly few quotes from modern representatives of the people which explain, honor, or passionately invoke our democratic Republic and its revolutionary design for the balance of government power.

      But back when Members of Congress still joined Parties, when they joined at all, because of the policy outcomes the Party both pledged to pursue and actually pursued (without, as is now the case, also ceding the power of their office to the Party machine, in order to retain, above all, their personal prestige and government salary), some of those American legislators publicly said a thing or two, about another notorious example of presidential/military abuse of power, that puts the buck-passing Stephen Breyers and Carl Levins of the nation to shame.

      A thing or two like the excerpts that follow, taken from reports of the three-week-long 1819 House debate on the highly-controversial 1818 “Seminole War” actions – including a court martial held in the field (in Spanish territory) that’s being used today by President Obama before the CMCR as ‘precedent’ for his private presidential justice system at Guantanamo Bay, Cuba – of Major General Andrew Jackson in the Florida territory of Spain, in which neither the words nor the concept of a “military commission” were ever uttered by either friend or foe of General Jackson:

      The House debate began after a report had been issued in January, 1819 by a committee asked by the House to study the matter. The committee report (approved by a majority apparently not including its pro-Jackson chairman) was delivered to the House and its conclusions later summarized by committee member Representative Thomas Maduit (T.M.) Nelson of Virginia – who said this of the majority report, on behalf of the seven-member House Committee on Military Affairs [select Image 615, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress]:

      The first proposition of the report is, that there exists no law of the United States authorizing the punishment of [British citizens captured in Spanish territory] Arbuthnot and Ambrister, by a military tribunal, for the charges of which they were found guilty and suffered death. The Rules and Articles of War alone contain the law which shall govern courts martial in their proceedings; and I deny that any authority can there be shown for the proceedings, in these cases, of the court or commanding General. The fifty-sixth and seventh articles cannot be construed to extend to foreigners, but are evidently intended to operate on our own citizens only, who shall be found guilty of aiding, abetting, comforting, or corresponding with the enemy.

      On January 26, 1819, Representative Charles Fenton Mercer of Virginia spoke [select Image 815, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress]:

      Is their view then, sir, correct? Were Arbuthnot and Ambrister tried by a court martial, or merely examined by a board of officers?

      A court martial is either a general court for the trial of all offences whatever, or a regimental or garrison court, for the trial of offences not capital. The former must consist of five, and may consist of thirteen officers. The latter cannot exceed three. A prisoner was here sentenced to death, and the assemblage of officers who sentenced him to that punishment consisted of thirteen; it was, therefore, either a general court martial or no court at all. A general court martial is required, by the rules and articles of war, to consist of “any number of commissioned officers from five to thirteen; but it shall not consist of less than thirteen, where than number can be convened without manifest injury to the service.” The court which tried Arbuthnot and Ambrister consisted of thirteen officers, with a supernumerary appointed to act, in case of unforeseen absence or incapacity of any one of that number. A general court martial is required to have a judge advocate, whose duty it is to administer to the officers the oath prescribed by the sixty-ninth article of war, and to act as counsel for the accused as well as the court. The court which tried Arbuthnot and Ambrister had a judge advocate, who administered the oath required by law, and interrogated the witnesses. The prisoner may challenge any member of a general court martial appointed to try him. Arbuthnot and Ambrister were called upon to exercise this privilege. The prisoner before a court martial is regularly arraigned upon charges and specifications filed against him. So were Arbuthnot and Ambrister. He is entitled to counsel if he requires it. Arbuthnot made application for counsel, and counsel was allowed him. A court martial sits with open doors, except when it decides question, and then the doors are closed. So proceeded the court which tried these prisoners. A court martial has only a limited jurisdiction, both as to offenses and persons. So this court decided, for, of the third charge and specification against Arbuthnot, the court decided, “upon the suggestion of a member, after mature deliberation, that it had no jurisdiction.” A court martial can sit, unless by express permission from the officer creating it, only between certain hours of the day. This court was, by order, allowed to sit without regard to hours. In the organization of a general court martial the members are seated alternately, according to rank, on each side of the President. So was this court arranged. A court martial records, along with a minute of its proceedings, all the testimony laid before it. So did this court. It is its special province to decide on the the guilt or innocence of the accused, and on the punishment, if any, which shall be inflicted upon them. So was this court required to do, and so it did. A general court martial is required to pronounce upon every charge and specification exhibited against a prisoner. This court obeyed this requisition by acquitting the prisoner, Arbuthnot, of being a spy, and responding to all the charges and specifications against him except that of which they disclaimed any jurisdiction. A general court martial cannot sentence a prisoner to death, without the concurrence of two-thirds of its members. A concurrence of two-thirds of the court is here certified.

      It was a general court martial, convened in virtue of a general order, “for the purpose of investigating the charges exhibited against Arbuthnot and Ambrister, and such others, similarly situated, as might be brought before it.” It is, therefore, denominated, by General Jackson, “a special court.” All its proceedings were approved by General Jackson; and his approval showed that his order had not been disobeyed.

      […]

      Conforming in so many particulars to the articles and usages of war, it is to be greatly deplored that this court martial, and the General who convened it, departed from both in the most important essentials of justice. For neither the articles of war, nor the treaties on courts martial, authorized the trial of Arbuthnot or Ambrister by the court which tried them. [Representative Mercer quotes Macomb here re those subject to court martial, and adds: and by a special act of Congress, “all spies.”]

      In this enumeration of persons subject to the cognizance of an American court martial, a search will be made in vain for a description corresponding with Arbuthnot and Ambrister, after the former had been acquitted of being a spy.

      The experienced Representative William Henry Harrison of Ohio said, in part [select Image 1019, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress]:

      The gentlemen who have contended for the right of the General to punish these men, of his own authority, have been led into the error by referring for the powers of the General to the law of nations, as explained by Vattel, or the law of war, as treated of by Bynkershoek. They might as well have examined those authors to discover to which of our courts belong the jurisdiction over piracies. The international law does not, it cannot, define the mode by which a nation may exercise a right which it gives. It is satisfied with giving the right to punish certain crimes, leaving to the nation itself the mode of punishment. Hence, in all the countries of Europe, England excepted, piracy is punished in a court composed of one or more judges, without a jury; but in the United States a jury is necessary. No single nation can change the international law, but every nation is competent to change the mode of punishing any particular offence against that law. The United States have, for instance, changed the mode of ascertaining the guilt of a spy. Contrary to former practice, a statute law has directed that persons charged with being spies shall be tried by a court martial. With respect, therefore, to the two individuals to whom the resolution refers, you are to look first into authors on the laws of nations, to determine whether you can punish them, and then to our own laws to ascertain how to punish them.

      […]

      My friends from Kentucky [the pro-Jackson chairman of the House committee making the report] and Virginia (Messrs. JOHNSON and STROTHER) have very triumphantly introduced two cases in support of their opinion of the omnipotency of a commander. The first is the case of the two British sergeants who, in the Revolutionary war, attempted to seduce the Pennsylvania line; and the latter, of a British officer, who was shot in South Carolina, for a somewhat similar offence. Now, it happens, unfortunately for their argument, that the Drum-head court which tried these men, is to all intents and purposes a court martial; ordered in the same way, and constituted in the same way as every other court martial. The only difference is, that the process is conducted with more celerity. It is called a Drum-head court, because, being generally in the field where there is no table, the judge advocate writes upon two drums, one placed upon the other; around which the president and members of the court assemble. I have seen two such courts ordered by General Wayne; one for the trial of an American soldier, who was sentenced by it to be shot for cowardice, and the other for the trial of Antoine Lassalle, a Frenchman, who was taken within the lines of our army, after the action of the 20th of August, 1794, and who had fought with the Indians on that day.

      The better to understand this subject, it may be necessary briefly to name the several tribunals that are acknowledged by our military code. They are, first, the ordinary courts martial of offences committed by our own officers and soldiers, and which are either general courts martial for the trial of capital or other high crimes, or regimental, detachment, or garrison courts, for the trial of inferior offences. Second, courts of inquiry, which report facts only, unless required to give an opinion, but which pronounce no sentence, and is therefore only an intermediate court. Third, boards of war, or special courts martial. And, fourth, councils of war.

      The powers and duties of the two first are pointed out in the articles of war. The authority to order the two last, is a prerogative of every commanding General, given to him by the custom of war. Distinctly marked as the powers and duties of the two last are, I was astonished to hear them confounded, not only by other gentlemen, but by the gentleman from Virginia, (Mr. SMYTH) himself a military man, who has given to his country a very valuable compendium of field tactics. The first is a criminal tribunal; the latter exclusively confined to the purpose of advising the General as to the course he is to pursue, with regard to the operations of his army.

      […]

      From the whole of these premises, I am authorized to draw the following conclusions:

      1st. That prisoners of war, in this country, are not at the arbitrary disposal of the commanding General, or the President of the United States, but, that they are under the protection of laws, or of customs having the authority of laws. In addition to the precedents to which I have referred, I find in Adye, p.5, that the rights of prisoners were under the protection of the court of chivalry.

      2d. That when a charge is made upon a prisoner, for a crime committed by himself, he is to be allowed a fair trial by a board of officers, constituting a special court.

      3d. That over the proceedings of this court, the General has no greater or other authority than he has over the proceedings of ordinary courts martial.

      On February 5th and 6th, 1819, Revolutionary War infantry Captain (and War of 1812 veteran) Representative Philip Reed of Virginia, a committee member, said [select Image 1065 & Image 1069, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress (for Reed’s personal account of his own dramatic actions in the deliberate execution of a deserter during the Revolutionary War, at George Washington’s direction, select Image 1063)]:

      I agree with the honorable gentleman from Ohio (Mr. HARRISON) in the view that he presented of courts martial, &c. That gentleman has correctly stated, that the army too has its common law. The common law of the army, like other common law, is applicable in the rule only to courts, to tribunals properly and legally constituted. The common law of the army gives no such an increased power or application in its principles. This common law applies also to the common routine of military duty. […]

      The whole system of common law of the army, so far, at least, as it relates to the rules of evidence, is the same as in criminal courts, as has already been correctly stated by an honorable gentleman from Virginia, (Mr. T. M. NELSON.) […] There are only two denominations of courts recognised in the army, courts martial and courts of inquiry. This has been called a special court. But that does not alter the character of the tribunal; it was still, to all intents and purposes, a general court martial. I know that general courts martial are sometimes called special, perhaps from a want of attention in the phraseology of the order making them. I have sometimes heard them called special when ordered to try a particular case; but all this does not alter or change the character of the court; the President [James Monroe] has denominated this a court martial; the Secretary of State [John Quincy Adams] has called it a court martial; General Jackson himself calls it a court martial. […]

      […]

      […] You, sir, claim the right of expatriation – the principle is contended for on the floor of this House. If it be a natural right, as asserted, that the citizens of the United States, or the subjects of any other nation, do possess this right, and a right to associate themselves with any other society or nation – can the nation from whom they have separated themselves prescribe to these people the society or nation to whom they shall attach themselves? I believe not. What right have you to control their will – to tell them whether they shall become the members of civilized or savage society? […] These Englishmen, then, according to your own principles, possessed these rights, and did exercise them. They attached themselves to a savage society; but it will not be denied that the Indians are independent nations; they are recognized as such by the treaties constantly made with them, many of which have been ratified during the present session. […] An honorable gentleman from Pennsylvania (Mr. BALDWIN) has, in my opinion, entirely mistaken the law, when he spoke of “confederacies, conspiracies, and combinations,” as applied to the case of Arbuthnot and Ambrister.

      These offences can only apply, I believe, to our own citizens or others within the limits or the territories of the United States, who may engage in these or other unlawful acts against the public authority. The law provides for offences of this sort, but it cannot apply to persons out of the limits of the United States, owing no obligations or allegiance to the United States.

      And on February 6, 1819, Representative Thomas Scott Williams of Connecticut said [select Image 1083, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress]:

      Besides, it cannot be pretended that a court martial has cognizance of the crime of conspiracy, or that this was a prosecution of that sort. And the gentleman from Pennsylvania admitted that it could not, technically, be so considered. […] But what jurisdiction had this court? Whence did they derive it? It was, say the defenders of the proceedings, an offence against the laws of nations, not punishable, however, by the civil tribunals of our country. The Constitution says that Congress may define and punish piracies and felonies on the high seas, and offences against the laws of nations. It is, then, for Congress to give courts martial this power, if they possess it. If this has been done, it is to be found only in the articles of war. Look over that code, you find no power given to courts martial to punish any offence with which these men were charged, except, only, that of a spy; and of this they were not found guilty. But, says the gentleman from Ohio, (Mr. HARRISON,) to be sure the power is not expressly given by the articles of war, but the power must necessarily reside in these courts. Your code, says he, is a very short one, and cannot be supposed to embrace or provide for every case. It is true this code is a short code, but it is a bloody one, (perhaps this may be necessary;) but are laws of this description to be extended by implication? Your Supreme Court have decided that they have no power to punish offences, but what is given them by the laws of the United States, and have no common law jurisdiction; and, if your Supreme Court have not the power to extend their jurisdiction, surely your militlary courts cannot possess any such power.

      […]

      A court martial, then, did assume the power to try and condemn to death men over whom they had no jurisdiction. These men were not, therefore, legally tried and condemned.

      Alexander Hamiliton, writing in The Federalist No. 81:

      “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.“

      • harpie says:

        I just couldn’t let another informative comment like this go by without thanking you, powwow. Your knowledge of these matters is mind boggling!

  22. Jeff Kaye says:

    Speaking of show trials, I’ve been incensed for awhile over the propaganda of constructing a Potemkin Village at Gitmo at Camp Iguana, where three teens were held in 2003-04. Now, taking advantage of the news around the licensing controversy over Colonel Larry James, I’ve finally written up the story (a bit lengthy) at Truthout (just went up):

    Guantanamo Psychologist Led Rendition and Imprisonment of Afghan Boys, Complaint Charges

    A peek:

    When putting the treatment of the Camp Iguana boys next to that of other children and teens held at Guantanamo and other US sites, it can only be inferred that the Camp Iguana children were primarily a demonstration project for public propaganda purposes. While little or no attention was spent on the impact of separation from family on these three children, or on the effect upon other family members, and while the abuse and difficulties of their initial stay at Camp Iguana, as reported by the children themselves, was never pursued by those who interviewed them, the emphasis on the supposed good treatment of these children appears to be aimed at promoting a picture of basic treatment of the children that is at odds with the treatment that most minors incarcerated by the United States received.

  23. earlofhuntingdon says:

    As you say, in the Washington-based scheme of things, the Omar Khadr trial was a sideshow. He was one child, mistakenly and wrongly picked up in the wrong place at the wrong time along with hundreds of adults.

    The big show, the center ring, is to establish the legitimacy of its replacement, ad hoc, inherently conflicted, corrupt “system of justice”. That’s how we rely on to establish facts and impose legal consequences on them. Coming soon to a theater near you. Did you get your drone de-coder ring yet?