Lt. Cdr. Charles Swift did a tremendous presentation on military tribunals at Cato. If you can see it on C-Span, make the time.
Swift has the unenviable task of defending Salim Ahmed Hamdan
, allegedly Osama bin Laden's driver and bodyguard.
But you may be able to see the central problem: how, exactly, is a chauffeur a war criminal? It is only possible if everyone
who was in any way connected to Al Qaida, down to the lady who ironed his turban, is charged with conspiracy. International law has never recognized this.
Why, you might ask, should we care?
Well, because as Swift pointed out, it would automatically make every member of the US armed services equally and automatically responsible for the torture and murder that went on at Abu Ghraib.
There are other problems.
Bushco is arguing that Hamdan should be tried by a military tribunal because he is a terrorist. However, as we know, lots of the guys held at Guantanamo were not terrorists and have been released. So... exactly where is the due process to separate terrorists (who may be tried by military tribunal) from non-terrorists (who probably should be let go)?
And there's more.
Hamdan hasn't been allowed to crossexamine witnesses. This became part of law in Crown vs. Sir Walter Raleigh.
Evidence has been obtained under torture. This was excluded as a legal tactic in the Salem witch trials.
It seems that Hamdan was not shooting at anyone when he was captured. So, is he a combatant, entitled to the Geneva protections?
In World War II, the Japanese were not signatories to the rules of war, because they expected their captured soldiers to commit suicide. But we more or less honored the rules of war because (a) we were signatories and (b) beating up on Japanese soldiers didn't help our guys.
Who are we really at war with, in a legal sense? Yes, Congress authorized the president to take action against anyone involved in planning or executing the 9/11 attacks. That certainly didn't mean Iraq. It might not even mean the Taliban, since it's completely unclear they knew about the attacks or were harboring bin Laden. Osama's driver? Maybe, if you built an evidentiary case that he helped Osama escape. But it gets very circular.
Swift demolished the Administration. His opponent in the debate was unable to answer his arguments. The Administration may win the debate in their little kangaroo courts. Tony Scalia may give Swift the finger as his irrefutable reasoning. But Bushco lost the moral debate long ago and are increasingly likely of finding themselves before the bar of justice at some future date.