Gitmo’s Commanders and My 4-Year Old Niece Play Games

I enjoyed watching my 4-year old niece wallop Mr. EW in a game of “Matches” last week. She kept making up new rules every turn, ensuring Mr. EW didn’t know precisely what the rules of the game were.

It provided me an excellent opportunity to teach her what the word “shrewd” means–“A special kind of smart.”

I’m less amused by this: Gitmo’s second new set of Military Commission rules in as many years. Last year, they released the 2010 Manual for Military Commissions hours before Omar Khadr’s trial started. This year, they’re introducing the 2011 Regulation for Military trial days before the Abd al Rahim al-Nashiri death penalty case starts. But make no mistake, this “Regulation” amends last year’s Manual. As Carol Rosenberg reports:

The Defense Department released the document two days ahead of the arraignment of a Saudi-born captive charged with murder and terrorism for al Qaida’s suicide bombing of the USS Cole off Yemen.


Almost simultaneously, the document appeared on the war court’s new nearly $500,000 website, numbering 202 pages and including some changes to procedures. For example, each case’s military judge now has the authority to approve the costs of a so-called “learned counsel,” typically a civilian defense attorney with extensive experience defending capital murder cases. It also outlined procedures through which observers could protest, through a chief clerk, a judge’s decision to declare an aspect of a trial as “protected.”


The Pentagon’s new Deputy Secretary of Defense, Ashton B. Carter, signed the new document on Sunday. He said in a foreword that it provided guidance at times that differed from the way the U.S. military court martials its own troops. “That difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.”

Legal experts were poring over the document Monday night.

Meantime, Human Rights Watch attorney Andrea Prasow called the timing troubling.

“The very idea that new rules could be issued moments before someone is arraigned to face the death penalty offends any notion of due process,” said Prasow, who has worked on war court defense cases. “The stamp of illegitimacy has been firmly affixed to Nashiri’s case.”

To make it all the more pathetic, check out the image at the top of the page.


That’s the top corner of these brand new rules. From DOD. The biggest bureaucracy in the world.

With no headers.

How the hell can DOD release new rules governing a capital case without even bothering to include headers or footers (the document has simple centered page numbers) to indicate these are actually the rules issued by the biggest bureaucracy in the world?

It’s like some sergeant somewhere who doesn’t know how to operate Microsoft Word was tweaking these until an hour ago.

Seriously, I haven’t even gotten into the contents of these new rules yet. But they look like a–very long–high school project, not the considered rules of  court of law.

12 replies
  1. MadDog says:

    I’m just starting to page through it myself, but on Page 5 it describes the Chapter 11 – Oaths. Notice the item “Reporters, 11-5.

    WTF? The Reporters have to take oaths?

    Of course, scanning to that section (page 77) shows that they are referring to Court reporters.

    The authors might want to edit that Table of Contents entry on page 5, doncha think?

  2. orionATL says:

    “some sergant somewhere”?

    sgt schultz, of course.

    perfect man for what the organization has become.


    four year olds are such a delight to spend time with – more fun by far than adults.

  3. Jim White says:

    But, but, how could you leave out the goats and the Rolex? From the Carol Rosenberg link:

    sample prosecution that charged a captive with murder as well as “pillaging” by stealing a Rolex watch, six goats and $20 American

    Those writers at the Pentagon may not have the wherewithal to come up with headers and footers, but when they dream up crimes, they get good ones.

    And what did they plan to do with the goats?

  4. MadDog says:

    As I scan through the document, I note this from pages 136-137:

    “…Classification decisions by the DoD Security Classification/Declassification Review Team and the original classification authorities of other non-DoD federal departments and agencies are not subject to review by the military judge…”

    I’ve not found any indication that the Defense can challenge classification decisions, nor even if possible, how the Defense could go about doing so.

  5. MadDog says:

    @MadDog: I should also mention that in addition to the Defense, it doesn’t appear that the Media nor the public can challenge the classification decisions.

    This means that it probably continues to be the case that any of a defendant’s complaints regarding brutality and torture will remain classified.

    Not because the defendant’s complaints would reveal “sources and methods” as is the common excuse of the US government, but because such complaints would implicate the US government in crimes under both US and international law.

    Can’t have anything to upset the kangaroos, can we?

  6. MadDog says:

    @emptywheel: I would note that the US government and defense filings regarding the monitoring of attorney/client information are themselves undergoing “security review” so even they are not available for perusal. See this link over at the Military Commisions website.

  7. MadDog says:

    @MadDog: In further reading of another document just posted today on the Military Commission’s website, it appears that Defense counsel is all over the “classification” issue.

    The document I’m referring to is the following:

    AE013A: Defense Response to Government Motion for Protective Order to Protect Classified Information Throughout All Stages of the Proceedings

    It is a 9 page PDF and in it, the Defense makes the following statement on pages 4-5:

    “…Everthing that Mr. Al-Nashiri says is presumed to be classified Top Secret/Sensitive Compartmented Information (TS/SCI)…


    …The government states that Mr. Al-Nashiri’s statements are presumed classified because he was interrogated and detained in CIA custody. (Gov’t Motion at 5f). However, this draconian presumption applies to any statement made by the accused, however, benign. As a result, the defense cannot provide competent and effective representation without a way in which to seek relief from this hindrance…”

  8. justbetty says:

    Paging Mr. Kafka. Could you have imagined the good ole USA, the beacon of democracy for the entire world, falling to this level?

  9. earlofhuntingdon says:

    Does the look of these rules demonstrate they aren’t serious attempts at rulemaking, that we will keep these people in prison indefinitely regardless of whether we “win” or “lose” by playing them. The USG’s record is that it plays by its own internal rules, which it doesn’t disclose, and changes them as and when it pleases or when someone discovers what they are? As you say, a game of “Matches” is a great primer in today’s version of “civics”.

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