Hamdan vs. Rumsfeld, et al

June 16, 2004 11:57 PM

Consider Lt. Cmdr. Charles Swift, military defense attorney, now representing Salim Ahmed Salim Hamdan, a Yemeni who admits he was a driver for Osama bin Laden, a prisoner at Guantanamo since 2002. He was transferred to solitary confinement in December in preparation for trial, but no trial date has been set. He has been told the trial will be fair but that evidence may be withheld from him, and his lawyer must ask the government's permission before revealing any facts of the case. He can seek redress only up the chain of command--in other words, to the people who decided he should be charged in the first place. Swift has filed lawsuit in Federal District Court in Seattle against Secretary of Defense Donald Rumsfeld and President George W. Bush, arguing not only that Hamdan is an innocent civilian, but that the military tribunal President Bush's administration created to try him is unconstitutional. Also, he says, the tribunal rules violate military law and the Geneva Conventions. If the government is right and Hamdan cannot use this legal avenue, "the logical result" is that Hamdan "could serve a potential life sentence without ever being charged with a crime and without being afforded a chance to prove his innocence," legal filings state. (More Within)
posted by y2karl (21 comments total)

To Georgetown law professor Neal Kaytal, Swift's pro bono co-counsel, that "flouts what the American system of justice has been since the Civil War, if not before." They, and other military defense lawyers are challenging the government's sole power to act as jailer, judge and possibly executioner in the case of prisoners captured overseas and held indefinitely at the Navy prison camp at Guantanamo Bay, Cuba, arguing, "The Constitution cannot countenance an open-ended presidential power, with no civilian review whatsoever, to try anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself."

Human Rights Watch: Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees (Pdf),
Rasul v. Bush - Petition for Writ of Habeas Corpus, Al Odah v. United States, No. 02-5251
See also Hamdi vs. Rumsfeld,
See also Yemeni's Attorney Tries to Halt Tribunals.
See also White House Seeks Secrecy on Detainee.
Additionally, Lawyers fear Guantanamo witnesses coerced.
Bush ignored Pentagon lawyers over tactics in war on terror.
In Guantanamo, detainee fears recorded.

As the amount of extralegal judicial deviancy increases, the community will have to adjust its standards so that conduct once thought un-Constitutional is no longer deemed so. Consequently, if we are not vigilant about enforcing them, our legal standards would be constantly devolving in order to normalize rampant extralegal secret trials and executions. We will become a true police state. Welcome to America.
posted by y2karl at 12:01 AM on June 17, 2004

The military order in question.

We will become a true police state. Welcome to America.
*screams, ducks large pieces of falling sky*
posted by David Dark at 3:08 AM on June 17, 2004

*beats David Dark with truncheon, throws him in 6x6x6 cage to bake in the sun for 18 months, giggles maniacally at his mewling requests for a lawyer*
posted by quonsar at 5:23 AM on June 17, 2004

no trial date has been set. He has been told the trial will be fair but that evidence may be withheld from him, and his lawyer must ask the government's permission before revealing any facts of the case. He can seek redress only up the chain of command--in other words, to the people who decided he should be charged in the first place.

Guilty or not, the proceedings of this trial sound like a summary of a Kafka novel.
posted by crank at 6:54 AM on June 17, 2004

*beats bush/asscroft/cheney with truncheon, throws them in 6x6x6 cage to bake in the sun for 18 months, giggles maniacally at the mewling requests for a lawyer*
posted by quonsar at 7:00 AM on June 17, 2004

the byline of the actual order text is this: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"

that just SOUNDS wrong. who the fuck are we to detain and try non-citizens?

gah. i'm glad i decided not to stay with the united states mercenary corps. what. the. fuck.
posted by taumeson at 7:41 AM on June 17, 2004

Despite the Kafkaesque aftertaste of this story , I have to say that there's something uniquely Great and American in a military lawyer that dares (and can) sue his Commander in Chief.

OTOH, a friend and co-worker of mine (yes, an Arab non-citizen) was detained this weekend after getting off a Paris-Atlanta flight because of an unpaid open container ticket (and a missed court date) in Athens, GA --Party Town USA.
posted by costas at 7:47 AM on June 17, 2004

Despite the Kafkaesque aftertaste of this story

no, no, it won't be Kafkaesque until the prisoner goes willingly to get his throat cut like a stupid sheep.

We will become a true police state. Welcome to America

i can see karl in his future police state banging on the police van screaming.

"take me away too, I'm an internet person who wrote of these treatments and procedures, so you HAVE to take me away....please?"

now karl will post a flurry of stuff he read or take a cheap shot at me or ignore me because I am "derailing his thread"

We will become a true police state. Welcome to America

OTOH, a friend and co-worker of mine (yes, an Arab non-citizen) was detained this weekend after getting off a Paris-Atlanta flight because of an unpaid open container ticket (and a missed court date) in Athens, GA --Party Town USA

WTF is that, is it relative to the story?....oh because we have to believe you and that you would relate this embarrassing story about an Arab non-citizen
perhaps he should have paid his frikkin ticket. Boy, you have a real national security barn burner flub- up there. Will you advise to call his embassy, maybe then can sue?
posted by clavdivs at 8:03 AM on June 17, 2004

I loved this part:

On Jan. 14, Katyal and the five military lawyers filed the brief. Ranging across more than 200 years of American history, it opened with a quotation from the Declaration of Independence in which the framers enumerated their charges against King George III -- charges that included elevating the military above the civil power, trumping up offenses and depriving colonists of the right to a trial by jury. ''Those charges,'' the brief stated, ''describe the United States' legal position in this case.''
posted by caddis at 8:18 AM on June 17, 2004

now karl will post a flurry of stuff he read or take a cheap shot at me or ignore me because I am "derailing his thread"

Schrodinger's clavdivs ?
posted by y2karl at 8:19 AM on June 17, 2004

be a good american karl and ignore it.
posted by clavdivs at 8:46 AM on June 17, 2004

clavdivs, why do you hate fair justice so much?
posted by five fresh fish at 9:06 AM on June 17, 2004

i can see karl in his future police state banging on the police van screaming.

"take me away too, I'm an internet person who wrote of these treatments and procedures, so you HAVE to take me away....please?"

ha ha ha
posted by David Dark at 9:46 AM on June 17, 2004

Why, last night (the 16th), WBUR here in Boston aired an On Point discussion with Lt. Commander Swift. You can listen to the show off of that link.
posted by tpl1212 at 10:05 AM on June 17, 2004

why do you hate fair justice so much?

as opposed to unfair justice? Seems to me Justice, by its' definition, is fair. (toss in some random plato) I think people like karl should keep their eye on these things, and allot are and are questioning the methods, we would be a police state if we did not or could not. But it is these little zingers like "welcome to america" that throw me off.

if one tried to seek justice from every injustice done, the world would be nothing but judges and prisoners. What of the teachings of tolerance and suffering, what of forgiving ones transgressor. But this issue does hit elements of "The Trial", aspects which escapes costas. We see K's ordeal though his eyes, even up till his death....hmmm, the idea was for us to learn from this. It would not be so instructive if the story was told entirely though the perspective of the land lady or judge or even the killers.

It is an important situation that has many consequences. I assume the misgivings are that these methods will or could be used against americans enmasse or selectively, for political reasons. What fails is what has gone before during situations like this. It is as if some of "you" folks do not think we could defend ourselves or that the people would turn against these laws like a cat on a hot tin roof if applied for the "wrong reasons".

caddis, good eye and this seems relevant concerning the "alien and sedition" acts which were not popular to say the least.

yes i poke at karl and fun at him but he has his eye on the situation, for that i agree with him at times but not sorry for derailing, I have to add something. what seems to lack in alot of posts in context and circumstances. karl, IMO, tries and puts some of that into it but to try and really make sense and come up with a position that approaches justice as a concept escapes me and others here. It is seemingly to large an issue but it does not have to be. Add something, even if the thread needs to be derailed. implications, aspects, context, analogy if one must, but come to some consensus or at least something that informs us MORE then the links provided.

saying that an "alien arab american" was hauled outta the ticket line for violating the law seems out of context to the situation. Perhaps not, but how does this situation better inform one to the current topic at hand. Profiling, persecution of non americans? By the posters own admission, law was broken, what was the consequence, did he still get on the plane? and of greater importance if he did board the plane did he order a drink? (kidding)
posted by clavdivs at 11:09 AM on June 17, 2004

excuse me, "non-citizen arab"
posted by clavdivs at 11:13 AM on June 17, 2004

Well, for the record, clavdivs, I regretted that last sentence about ten seconds after posting. I was still het up over seth's shit flinging from the day. It was an unnecessary rhetorical flourish.
posted by y2karl at 12:05 PM on June 17, 2004

For one, I did not endorse the "Welcome to America" zinger. Actually, my personal take from the article was mostly positive because only in this country would Cmdr Swift be doing what he's doing --and I cannot admire that enough.

As for the story of my friend (and you don't have to believe me clavdivs), I mentioned it to point out that what the article describes (encroachment of basic civil liberties) isn't just happenning in Guantanamo --and it's awesome that the American system itself is trying to right itself up.
posted by costas at 5:42 PM on June 17, 2004

It was an unnecessary rhetorical flourish.

One might call it the tragic flaw in an otherwise good post.
posted by David Dark at 5:50 PM on June 17, 2004

[holds hand melodramatically to brow]

Oh, the tragedy, indeed!

[faints]
posted by five fresh fish at 9:41 PM on June 17, 2004

I assume the misgivings are that these methods will or could be used against americans enmasse or selectively, for political reasons.

No, I don't worry so much about that. Yet. But secret trials of so-called enemy noncombatants are a step in that direction. Judicial proceedings should be done in daylight--period.

More: ....The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.

Roper: Then you set man's law above God's!

More: No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God....

Alice: While you talk, he's gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

A Man For All Seasons

I forget where I first saw that today so I looked it up--but it quite fits.

Despite the Kafkaesque aftertaste of this story , I have to say that there's something uniquely Great and American in a military lawyer that dares (and can) sue his Commander in Chief.

On that I think we can all agree, which is why I posted it. It's a note of hope in a story with very frightening implications.
posted by y2karl at 10:08 PM on June 17, 2004