Defending Hamdan

[jmm99]

Legitimacy as a Battlespace
.....
As a note, I should point towards an absolutely excellent answer to my final question was recently posted at the Small Wars Council (thread; post) by JMM99, who is following the CT Lab symposium (and enjoying "educating" me).

http://www.terraplexic.org/review/20...ttlespace.html

and now, I'm going to have to live with being judged by a standard of "absolute excellence" - a standard that will not be met. In any event, thank you for the kind words - I think.

Your factual point in your post above, which is ..

For most people, I suspect that the idea that a person can be taken from their home in one country and charged by another nation under its domestic laws (and without their same protection) is terrifying. Not only is it terrifying, it will, inevitably, undermine the perception of a rule of law, especially if the "law" can be changed and those changes applied retroactively. This strikes at the heart of the perception of a legal system as "legitimate", by attacking people's perceptions regardless of the actual legality of the action.

certainly has perceptive reality - especially with the caveats you list:

1. "without their same protection" - not necessarily fatal in legal logic: that is, to say, US citizens will receive greater rights when prosecuted for the same crime than aliens (JW Lindh vs. Hamdan) - after all, JWL received a longer sentence (and that, after a plea bargain !). Where it becomes more than a capillary cut is where the perception previously created is just the opposite. For years, the US admins (joined often times by the courts) have pushed the concept that we treat everybody in the world the same - you're all just as good as US citizens - one fuzzy, cuddily little world. We are all citizens of the world ! When reality crashes against that perception, we are getting into arterial cuts - from an agitprop, not legal, standpoint.

2. "especially if the "law" can be changed" - again not necessarily fatal from either a legal or agitprop standpoint. In fact, it could be a plus - admission of a screw-up should be regarded as a strength, not a weakness. In our current culture, admission of error seems not the norm - unless an abject apology keeps you out of the Big House, or mitigates the punishment. Admittedly, the sad legislative and administrative history of DTA and MCA is not a good example of how to admit error and to correct them. In fact, the changes seem to have created an even bigger sinkhole, which ended up being tossed in the laps of the DC District and Circuit judges.

3. "and those changes applied retroactively": - I haven't talked about that much in "War Crimes". No definitive decision has held the Ex Post Facto Law Clause applicable. SCOTUS may have to decide that issue. I have a bias there, to the extent that I (like Robert Taft, Sr) questioned the validity of Nuremberg and Tokyo - because of the ex post facto doctrine, despite the very real crimes charged. Having said that, I also have to recognize the WWII War Crimes Trials as precedents, which seem controlling here - since their judgments gave fair warning to future man-eaters.

My bottom line feeling (just that) is that the DTA-MCA system can be salvaged - but it will take people like M.J. Keith Aldred and the working DC judges to do it. While some at terraplexic look at what happened after 9-11 as "seige mentality", I look at the legal aspects largely as a matter of incompetence; and a refusal to admit reality when that reality did not fit the perception that was desired.