At 10:00 a.m. Thursday, in Courtroom 201 of the U.S. Court of Appeals in Washington, a lawyer for the president who campaigned on the closure of Guantanamo and the end to the discredited military commissions will argue to the United States Court of Military Commission Review in support of the Guantanamo military commissions. You would be forgiven for responding with a yawn about news of another flip-flop, but there is something grotesquely newsworthy about this. If I lived in D.C., I'd take my daughter for a hard-to-beat history, sociology, psychology, politics and morality lesson.
In particular, the issue in U.S. vs. Bahlul is whether an individual already determined to be "the enemy" can be charged with "aiding the enemy." The government is on very thin ice here, since this crime is actually about treason, which presupposes that the accused is a U.S. citizen or for some other reason owes allegiance to the United States.
Now don't get me wrong, Bahlul's conduct may very well have constituted any number of crimes chargeable in our regular federal courts, for example, conspiracy to kill U.S. civilians. But the military commissions are about war crimes and for the enemy to aid the enemy is not a war crime. How thin the ice is can be seen by how deep down the sewer the government has to go to find precedent.
Cue the government's brief citing this gem from the State of the Union speech of President James Monroe, referring to a prosecution of two British nationals for aiding the enemy during the First Seminole War, wherein, Andrew Jackson was hard at work on his lifelong project - ethnic cleansing of the southeast United States, which continued into his presidency with the Removal Act and the "Trail of Tears":
Men who thus connect themselves with the savage communities and stimulate them to war, which is always attended on their part with acts of barbarity the most shocking, deserve to be viewed in a worse light than the savages. They would certainly have no claim to an immunity from the punishment, which, according to the rule of warfare practiced by the savages, might justly be inflicted on the savages themselves.
Wow. The interesting thing here is that a thoughtful person would realize how citing this case harms the prosecution's interests. It suggests that the accused have no rights because they are worse than "the savages" and because somehow "the rule of warfare practiced by the savages" themselves allows the United States to throw its own judicial standards out the window. Reminds one of how it's okay for the U.S. to torture because the enemy does it, too. More to the point, it reminds one of how the military commissions are being used today: a second class system of justice for the exclusive use of aliens (Timothy McVeighs deserve better, thank you) who, as a recent former vice-president said, "don't deserve our rights."
It's hard to imagine a better argument against military commissions, and in favor of the established federal courts, than this sordid precedent. Thank you to the lawyers defending President Obama's military commissions.
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