4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
(i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
(j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised.

The military commissions, in light of the above, are a joke. They explicitly deny the right against self-incrimination, and they do not include, in any working form, the presumption of innocence. In addition, as Madeleine Morris advised Lt. Col. Vandevert, these people are due two proceedings in court, not one, as they are first supposed to have their status reviewed by a court before they are charged and tried, and that is a different review from their Article 5 hearing or CSRT.

None of the detainees had any information, and any of them could have embarrassed Bushco, if they were ever freed or tried in open court. What military or security purpose did Gitmo serve? Was it just there for partisan political purposes, to fan the paranoia of the Republican base?

What’s it there for now?
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In fact I still think that.

Al Qaeda and it’s ‘friends’ in jihad against Israel and America is not a nation and it’s members do not wear uniforms and there is no one centralized battlefield. This ‘war’ is very different from those of the past.

So, do we hold prisoners of ‘war’ indefinitely, until the ‘war is over? What if some of those we hold are not properly combatants fighting us?

It seems this requires us to change and create a legal structure befitting a war and upholding all of our values (as Senator Lindsay Graham said so well today). This is a tremendous challenge and an unfortunate distraction from our other business and it annoys us.

Add, on top of all that, the fact that Guantanamo Bay is not in America although we use it and have complete control over it by way of having leased it’s use from Cuba many years ago. What is the legal status of anyone there? How does this relate to our treatment of those prisoners (torture and legal rights) and how we go forward from here?

It appears our Congress has decided they agree with the President that Guantanamo ought to be closed, but not until we have settled upon solutions to these problems. That is a good short-term solution to one practical issue.

I wonder, has our military court system been used to deal with anyone other than U.S. military personnel? Is it appropriate for that system to be used with foreigners or is it only to be used with Americans serving under the legal system for the military? If the answer includes foreigners (presumably prisoners of war), then we save ourselves having to move prisoners onto American soil to try them in civilian courts.

If there is a history of the military courts being used then is the law and procedure sufficient for this new dilemma or does it require something more?

Use the tradition to the extent is avails itself. Create new when required.

The state cannot be wrong, therefore, it cannot admit past wrongs, therefore, it cannot correct them. Q.E.D.

That bit about justice, the rule of law, due process? Well, shit happens. But that way, the way of Bush and now Obama, lies madness, and 21st century fascism.

The detainees, according to the Supreme Court’s Boumediene decision last year, have the right to habeas corpus, full stop.

I heard one senator tonight still making the case that the detainees do not or should not have the “rights accorded to american citizens, including habeaus corpus”. Jeebus.

First of all, as I have argued before, if we Americans believe that as a society we have the right to trial then it would follow that we believe that all humans have this right regardless of citizenship or circumstances. Period. There are no disqualifiers to this foundation of society.

Second of all, they are talking like this supreme court decision didn’t happen!

Third of all, and the most egregious to me, is the assumption that they are all criminals, already found guilty of committing terrorist acts by the fact that they are in gitmo. If you weren’t guilty, you wouldn’t be here.

Another person was arguing that gangs still operate in prison and they sure didn’t want terrorists to continue to operate in prison. That just made no sense to me at all.

Arguing that ”potential” is the same as ”actual” is a blatantly dishonest appeal to fears of the unknown. ANYONE could, someday, ”come back to commit” crimes. The difference between a criminal and a decent person is an act, not a belief, inclination, or proclivity. But the unknown perpetrator of an as yet unknown crime is always more frightening than a real threat and is thus much more useful politically.

In all aspects of a rational society–in law, in science, in historical and literary analysis, in engineering– lack of evidence is functionally equivalent to non-existence. What can’t be tested and demonstrated to exist–what can’t be proved–is presumed to not exist for all practical purposes. Court-room rules of evidence are in force in order to insure that conclusions about guilt and innocence are rational conclusions, based on evidence, not fantasies, delusions, or prejudices that rest on nothing more than adrenaline and scarey stories. We do not need absolute certainty to convict someone of a crime. But we do need to be certain beyond a reasonable doubt.

The politicians can’t convict the detainees in court, because they have no evidence and can never get beyond reasonable doubt. So they want to relax the rules of evidence and convict free men using fear and innuendo. The politicians think that we are afraid enough to accept any scapegoat. They think that we can be manipulated by appealing to these fears.

But fear is an emotion, not a reason. As rational beings, we can make reaswoned decisions. We’ve seen enough evidence already to know who we can try, using a regular court and with a fair certainty of getting a conviction. They aren’t foreign or Muslim, and they are in detention. Not yet.

The problem with the Bush Administration was that they were arrogant, sloppy, lazy, and wrong. They failed but Bush era failures were not a case of getting a 59 instead of a 60. They were the student with an average of 2.

Obama won’t but he should blame the Republicans. He should say listen folks I will clean up this mess but the Republicans did such an awful job that it may not be the job that you or I would like. But I will put things back on track and I will return this country to the rule of law.

As I said Obama won’t do this. Nor will he get help from Congressional Democrats, many like the ever weasely Harry Reid that sat on his boney ass for years and did nothing while this problem festered and now does nothing but whine about it.

Then they discovered that the evidentiary thresholds for doing so were too high given the quality of information the Bush government had collected about the detainees

Spencer alludes to this in his last paragraph but for anyone who has looked at the Moussaoui, Padilla, or Holy Land Foundation trials the evidentiary threshold was extraordinarily low. If Justice can’t make a case out of what the Bush Administration left it, then this is a damning admission that what the government was holding these guys on for years and years was beyond crap.

All of this is so cockeyed. There are American criminals not only in the system but on the streets that would make all but a handful of the Gitmo detainees look like Boy Scouts. Many of the “worst of the worst” have already been released from Guantanamo. Last I looked the country was falling apart but it wasn’t from any of those released who went back to being jihadis. And in fact if you look at it in terms of damage, who has done more harm to this country in the last few years, all of al Qaeda still at large or banksters like John Mack (MS), Lloyd Blankfein(GS), and Jamie Dimon (JPM)? You want terrorists? These are real honest to God ones. And let’s face it, the government had in most cases 6-7 years to prepare prosecutions and gather evidence.

Now even for the joke proceedings of the military commissions they did need to prepare something. And maybe that should have forewarned us because even with all of the deck stacked in its favor the Bush Administration in its final days was encountering insurmountable problems in moving cases at Guantanamo.

I would think this would be a perfect excuse precisely to leave it to the federal courts and let them sort it out. Any problems, blame them on the mammoth incompetency of Bush and the Republicans that had not only time (years) but all the advantages for gaining convictions (through their kangaroo courts) and blew it completely.

The basic problem is that the Bush administration cast as wide a net as possible to round up terrorism suspects, using the sloppiest possible criteria — that is, the weakest possible evidence — for picking them up.

Now one result of that is the number of false positives — those who are detained who aren’t terrorists — will be tremendous. But it also ensures that the number of true positives — those who are detained who are, or will be terrorists — will rise as well.

At the same time, precisely because the initial evidence that they were terrorists was so weak, the likelihood they will have enough evidence to hold them past a habeus corpus hearing is low. This is especially true because of the Bush administrations further acts of incompetence and moral corruption using torture to extract information. Evidence that arises from that torture will be, presumably, inadmissible in court, and may taint much consequent evidence.

So it is not at all unlikely that among the current detainees are at least some genuine terrorists, or potential terrorists, who will be released at a habeus corpus hearing.

The upshot? These individuals may indeed come back to commit terrorist acts in the future. If so, it will be made to look as though following due process was a mistake; but the mistake will always have been the incompetence and immorality of the Bush administration’s actions in the first place.