The Gitmo Circus

Imagine if, during the O.J. Simpson murder trial, Judge Lance Ito ordered the district attorney's office to hand over DNA samples and logs of O.J.'s stay in county jail after his arrest. Then imagine that the prosecutors refused to do so. And that, instead of being fined for contempt of court (or thrown in jail themselves), these same prosecutors somehow got their boss to get Ito tossed off the bench. And then the D.A.'s office worked behind the scenes to replace Ito with a more, shall we say, compliant judge.

Wouldn't happen. Couldn't happen. Never in a million years. Not even in California.

Well, Cuba isn't California, and Guantanamo Bay is further still.

According to this report from Carol Williams in the Los Angeles Times, this bizarre story is precisely what happened over the weekend in the case of Omar Khadr, a Canadian charged with murder, conspiracy and supporting terrorism:

Army Col. Peter Brownback III was presiding over the case of Canadian detainee Omar Khadr. Marine Col. Ralph Kohlmann, in his role as chief judge at Guantanamo, ordered the dismissal without explanation and announced Brownback's replacement in an e-mail this week to lawyers in Khadr's case.

. . . Brownback had threatened to suspend the proceedings against Khadr unless prosecutors handed over Khadr's medical and interrogation records since his July 2002 capture in Afghanistan.

Khadr's Navy lawyer, Lt. Cmdr. William C. Kuebler, had asked for the records months ago, and Brownback had ordered the government to produce them.

The lead prosecutor in the Khadr case, Marine Maj. Jeffrey Groharing, this week reiterated to Brownback his view that the defense wasn't entitled to the records. He urged the judge to set a trial date.

Brownback said during an April hearing that he had been "badgered and beaten and bruised by Maj. Groharing" to set a date but couldn't do so in good conscience when the prosecution was withholding evidence.

Brownback revealed in a November 2007 session that Pentagon officials had made clear they "didn't like" his decision the previous June to dismiss the Khadr case for lack of jurisdiction.

That ruling was overturned a few weeks later by a hastily assembled Court of Military Commission Review.

Asked about Brownback's removal, Air Force Capt. Andre Kok, a tribunal spokesman, said it was "a mutual decision between Col. Brownback and the Army that he revert to his retired status when his current active-duty orders expire in June."

Kangaroo courts indeed. And the courts look even more foolish for attempting to blame the Army personnel system. More to the point -- does anyone in the Pentagon really believe this is justice? Or that these tribunals' outcomes will contain any sort of strategic value, given the near-total lack of fairness, legitimacy or transparency?

By Phillip Carter |  June 3, 2008; 8:32 AM ET  | Category:  Law
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Phil: For a slightly different version, read ... It will be interesting to see development.

In a paralel story, a man named Arfan Bhatti today got off from a charge of terrorism in Oslo, Norway today. This cause the US ambassador to criticise the norwegian legal system for being too soft, a rudeness beyond description. This has elicited angry snarls from a collective norwegian judicial establishment. Brilliant IO there...

Posted by: fnord | June 3, 2008 1:51 PM

"More to the point -- does anyone in the Pentagon really believe this is justice? Or that these tribunals' outcomes will contain any sort of strategic value, given the near-total lack of fairness, legitimacy or transparency?"

Nice ending.

Destroys whatever non-existant "legitimacy" we have in world opinion concerning Gitmo and everything that follows in its wake. But it's not really about what all the foreigners think or what's legal. Its about playing a consistent themesong back home. War on Terror, Be Afraid!

What is the probability that our "social-political apparatus" or simply "state" will be able to take us all back to something resembling the rule of law, or simply what existed in the US in 2000?

. . . and now we go into the 2008 elections.

Posted by: seydlitz89 | June 3, 2008 6:18 PM


"Phil: For a slightly different version, read ... It will be interesting to see development."

I read that article. Frankly, the guy gave the benefit of the doubt to the administration, which has long since forfeited it. Also, he didn't mention that this happened after the prosecution refused to turn over evidence.

Posted by: Barry | June 3, 2008 10:07 PM

Due process does not extend to those whom the President has identified as an enemy combatant. The trial isn't so much a trial as a ratification of the foregone conclusion that the party in the dock is guilty as charged. All that remains is the sentencing. That's what Cheney meant when he spoke of "the gloves coming off" in the period immediately following the 9/11 attacks. No more Mister Nice Guy. When you are detained by the U.S. military, you can kiss your rights goodbye.

Posted by: BlueTwo1 | June 4, 2008 12:13 AM

"That proves his guilt, of course," said the Queen: "so, off with----."

"It doesn't prove anything of the sort!" said Alice. "Why, you don't even know what they're about!"

. . . . "No, no!" said the Queen. "Sentence first--verdict afterwards."

"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"

"Hold your tongue!" said the Queen, turning purple.

"I wo'n't!" said Alice.

"Off with her head!" the Queen shouted at the top of her voice. Nobody moved.

Posted by: sturun | June 5, 2008 7:38 PM

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