Courthouse at Guantanamo

Courthouse at Guantanamo by NewsHour, on Flickr

We all know how the U.S. justice system works. You’re arrested, then tried, found guilty for a crime, then the court looks around for a different crime they are going to sentence you for. What? That is not how you think it is done? Well if you are a Guantanamo Bay detainee like Al Bahlul that is exactly what is going on today.

The Center for Constitutional Rights is highlighting this small bit of continuing legal (extra-legal?) chicanery going on in our Military Commissions Review in Cuba today.

Mr. Bahlul was part of the original prisoners brought to Guantanamo Bay nearly a decade ago. After serving several years without charge or conviction, he finally got a trial. He was charged and convicted on conspiracy, solicitation and providing material support for terrorism.

In the process of his appeals there has been a new administration, a Supreme Court decision, a reshuffling of the Court of Military Commissions Review (the appeals court in the Military Commissions system) and a decision that the appeal be held en banc (meaning that the whole appellate court heard the appeal). At this point the government has all but agreed that the charges that they originally convicted him on were not established at law-of-war offenses either under international law or U.S. law at the time they were committed.

This is an important fact as the U.S. Constitution bars ex post facto convictions Article One, Section 9 prevents the Congress from passing ex post facto laws. What this means is that you can not be held accountable as a matter of law for a crime that was not as crime at the time you committed it.

Say you famously hang-glide to the top of Mount Rushmore. The Congress can not wait two years then pass a law that makes it a felony to land on a National Monument in an unpowered plane. Prior to our so-called “War on Terror” and the very crappy legislation that came out it, if you were not a U.S. citizen and were not living in the U.S. you could not be charged with material support to the enemy.

In an effort to save their botched prosecution the attorney’s for the government have resorted to a very dubious and troubling argument. They have argued that Al Qaeda is “very much like” the Native American resistance to the U.S. government in the so-called “Seminole Wars”. Not only is this factually wrong, it brings in all the racist overtones that lead to the abuses of Native Americans and the Trail of Tears, which by today’s standards would be considered a genocide.

Is this really the level of jurisprudence we want when we are talking about confining someone to a prison for the rest of their lives? Comparisons to other times when the United States acted in a way that has brought long lasting shame to our nation?

It would be bad enough if it were just the governments lawyers to be zealously still arguing that we should keep this spurious conviction, but it is a disgusting shame when the appeals court is looking for reasons to keep someone locked up for life based on crimes they were not convicted of at trial.

From the CCR press release:

The court appears to recognize this as well, because on January 25, 2011, it issued certified questions on its own and ordered the parties to address whether Mr. Bahlul’s conviction can nonetheless be supported under a “joint criminal enterprise” theory of liability, or on the ground that he “aided the enemy,” despite the fact that he owed no duty or allegiance to the United States. These questions are the subject of tomorrow’s hearing.

What makes this really legally troubling is that at trial the government expressly withdrew their “joint criminal enterprise” theory and they have never charged or argued aiding the enemy. It is tough to argue that for people who have no duty to support the United States, as people who are not citizens and do not live in our country, have no such recognized duty.

I understand that the Guantanamo Bay Military Commissions were set up with the express idea of achieving convictions that would not be possible in federal court (even though that a meme that have been proven untrue time and time again) but to have it be so slip shod as for the Appeals Court of these tribunals to propose to hold and sentence a man for crimes that were never presented at trial flies in the face of our entire idea of justice.

History judges us all. It generally judges a people as a whole for the actions of their leaders. Our leaders, including the President I worked for and voted for have shown a shocking level of disregard for the rule of law. They have become so fearful or contemptuous the fair application of the law that they are acting in complete contravention of the Constitution they have sworn to uphold.

One of the anathema’s that the Founders wanted to be sure was kept from their new nation was the ability of the King to change the rules after the fact and convict people of crimes that were not crimes when they committed them. The entire Military Commissions Act has been chipping away at our ideal of rule of law since its inception. If Mr. Bahlul is sentenced to life for a crime he was not convicted of or for ex post facto crimes that he was convicted of, we have taken a huge step backwards towards the time when Might made Right, and there was no real Justice.

The floor is yours.