More on the Kadr and Hamdan dismissals in Justinian

Roger Fitch has another excellent piece in the Australian law journal, Justinian. Fitch offers an analysis of the recent decisions by military judges Brownback and Allred and untangles the badly bungled categories of "unlawful enemy combatant" and "enemy combatant."

Under the MCA, a defendant must be an “unlawful alien enemy combatant”, and this has been duly alleged in “war crimes” charges. However, the CSRTs, whose decisions are “dispositive” under the MCA, have used the meaningless “enemy combatant” status concocted by the Bush administration.

As the LA Times noted in its report of the proceedings, the Bush lawyers eliminated the lawful and unlawful distinction in order “to deprive the war-on-terror suspects of POW rights and living conditions”.

The CSRTs have no legal basis in any statute or regulation. They were diversions set up by the Pentagon within ten days of the 2004 decision of the Supreme Court in Rasul (Hicks), the case that confirmed the right of Guantanamo detainees to have habeas corpus hearings in Washington federal courts.

Being ad hoc and extralegal, the CSRTs conscientiously tracked other Bush flummeries such as the wholly imaginary “enemy combatant”, a fabulation designed by Bush lawyers in the ignorant belief that it would fall outside both criminal law and the law of war. The only alternative status was “no longer an enemy combatant.” That no such categories existed under the Geneva Conventions or international law was of no moment.

In fact, CSRTs ask the wrong question. They present detainees with “a paralysing Catch 22”. Admitting membership in the Taliban makes one an “enemy combatant”, which (the Pentagon claims) precludes PoW status. But denying involvement with the Taliban leaves a prisoner unable to show that he is entitled to PoW treatment. It’s diabolical.

Even if CSRTs provide a bare justification for holding prisoners taken on a battlefield, the omission of a determination of combat status means they can confer no “war crimes” jurisdiction over defendants.

Now, in decisions of separate military judges in Guantanamo, this legislative flaw has caused the dismissal of both the Khadr and Hamdan military commissions. As many noted, the striking effect of the decisions, particularly in the case of Hamdan, is to find that there are in fact no “unlawful enemy combatants” in Gitmo. READ THE FULL ARTICLE HERE

We also learn that the phrase "Homeland Security," like "enhanced interrogation," has a pretty unsavory history.

In earlier reports I have noted the Tendenz of the Buschvolk to appropriate old Nazi expressions for their more unsavoury experiments, e.g. Heimatssicherheit morphed into the identically named Homeland Security.

Now the astute blogger Andrew Sullivan has discovered the origins of the CIA’s infamous techniques of “Enhanced Interrogation”.

As Sullivan found, it’s a translation of verschaerfte Vernehmung (literally, “sharpened” interrogation). The techniques described in the Nazi protocol are also much the same, although the Nazis didn’t include die Wassertortur in their list of delights.

Some things just don’t lend themselves to literal translations: the Fuehrer Prinzip has been adapted to the Unitary Executive Theory.

Read more of "Our Man in Washington" from Justinian.