Although it has been scarcely a restless night's sleep since my declaration that Veiled Chunk's career path would be one of international human rights law, breaking news has peaked my interest in a new and still-developing field of law. This is not civil law, common law, international human rights law, humanitarian law, or even Shari'a law -- this is SSL *first coined here, by Veiled Chunk, I want the stone tablet to show!* which refers to the Super Special kind of Law being used in US military commissions that are, interestingly, neither trying members of the US military nor applying military legal code.
I'll repeat that on another line so that the visual separation from the other sentences underscores my point, in fact, I'll put it in bold: US military commissions are holding trials of non-military persons and applying non-military law.
To develop your own rant, mass email, blog, or bathroom wall scratching on this topic, please refer to this New York Times article, by Neil Lewis (online password required). All italicized block-quotes, below, are excerpted with thanks from this article.
For readers on the go, here are some of the key aspects of SSL, a legal system designed to ensure guilty verdicts against suspected terrorists by rigging the jury, blinding the defense, and forbidding evidence in favour of the defendants (sorry for the weird spacing -- it looks normal when I edit it, but gets all weird when I post it!):
* by "handpicking" the members of the military commission, prosecutors are assured by their superiors that they needn't fret over cumbersome obstacles to conviction found in other legal systems (including Shari'a) that require proof
In his March 2004 message, Captain Carr told Colonel Borch that "you have
repeatedly said to the office that the military panel will be handpicked and
will not acquit these detainees and we only needed to worry about building a
record for the review panel" and academicians who would pore over the record in
years to come.
* prosecutors receive further assurance that the innocence of the defendants is impossible to maintain under SSL by the fact that exculpatory evidence is systematically classified by the CIA and withheld from trial (note in the quote, below, that the CIA does not classify ALL evidence, or even 15% of evidence...just the 10% that is of use to the defense)
[E]xculpatory evidence - information that could help the detainees mount a
defense in their cases - would probably exist only in the 10 percent of
documents being withheld by the Central Intelligence Agency for security
reasons.
* prosecution benefits from a blind-sided defense that must investigate the legitimacy and context of claims made by unidentified prosecution witnesses (it's like the courtroom version of an old childhood favourite, Guess Who?)
The rules, which in essence constitute a new body of law distinct from military
and civilian law, allow, for example, witnesses to testify anonymously for the
prosecution.
* prosecutors are not expressly forbidden from using information extracted under conditions of extreme duress/torture
It is unclear whether information that may have been obtained under coercion or
torture can be admissible.
* defense attorneys are (de facto) forbidden from proving that said information was extracted under such conditions, as evidence of torture is, as part of a modified SSL discovery scheme, duly destroyed
[E]vidence that at least one of the four defendants had been brutalized had been
lost and...other evidence on the same issue had been withheld...In his
electronic message, Captain Carr said the prosecution team had falsely stated to
superiors that it had no evidence of torture of Ali Hamza Ahmed Sulayman
al-Bahlul of Yemen. In addition, Captain Carr said the prosecution team had lost
an F.B.I. document detailing an interview in which the detainee claimed he had
been tortured and abused.
There is an interesting connection between the promotion of SSL as an accepted legal category and the White House nomination of DC Circuit judge John Roberts to the US Supreme Court. Just a few weeks ago, Roberts was part of a three judge panel that overturned the November 2004 ruling by District Court judge James Robertson (who is a total hottie for a man in his 60s) deeming the military commissions in violation of international and US law. I have tried unsuccessfully to get my hands on the actual Robertson decision from last year, but here is the Circuit panel's decision to overturn it.
That's all for my fist *substantive* Veiled Chunk-ing. For those of you with interest, bravery, and high tolerance for unskilled legal analysis, feel free to read my thoughts on the DC Circuit opinion supporting the military commissions, below.
VC
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I am not familiar with some of the dicta referred to in this decision, but I will say that it's a bit late for the government to make "an effort to minimize the precedential effect of Quirin," which is one of the most important and widely-cited precedence-building cases when it comes to the applicability of military commissions. It seems to me that the Opinion, written by Randolph (with whom Roberts concurred), acknowledges the validity of Quirin by implication when it recognizes that Councilman and New (used by the government to limit Quirin) do not apply to alien prisoners and "left nothing to detract from Quirin's precedential value."
I agree with the Court's finding that the separation of powers claim was weak, and (unfortunately) agree that Congress authorized the military commissions -- mostly through the sweeping legislation that it passed (and has recently reaffirmed) in the months following 9/11, coupled with the elastic interpretation of this legislation (eg: to allow for Presidentially-mandated military commissions) provided by Yamashita.
Although I had never heard of the Eistenrager decision before reading this Opinion, and will try to look at it sometime in the future, it seems like a truly awful ruling. It is ridiculous to assume that the drafters of the Geneva Conventions (in both their current incarnation and their earlier forms) intended to design a document that provided rights that were non-justicible; the Restatement (Third) of the Foreign Relations Law of the US which is used to support the argument that conventions such as Geneva do not confer INDIVIDUAL (private) rights is atrocious...I mean, I can't believe that all three DC Circuit judges sitting on this panel would allow international law to be castrated in that way. The entire basis for the dismissal of the Geneva argument in this case is that it is not possible or necessary for federal courts to implement the rights protections demanded by Geneva, and the basis for this argument is a horrible Supreme Court decision from 1929 and the Restatement that I just mentioned. Ugh. The whole comparison between the 1929 and 1949 Geneva versions is just a ridiculous exercise to prove that they've read both versions, and I continue to be totally disheartened that they would argue (and that precedence seems to support) the non-applicability of habeas corpus in the Constitution to the enforcement of the Geneva Conventions. My favourite part of the ruling (skipping over the: "are there status determination gaps in the Geneva Conventions?" perennial question, to which the answer is: NO!) is where the Court actually argues that President Bush is a "competent authority" to perform status determination of detainees according to the categories of the Geneva Conventions. No offense to our two-term President of "wide mandate," but it seems the DC Circuit is setting the bar for "competent authority" rather low...I wonder if the ICRC would agree that Bush is an authority in international humanitarian law?