Thanks to you and harpie.
I already have that rule…but even that is not always the answer to my problems! ;-)
Well, it’s my best excuse this morning. That, plus I’m trying to pack for the move.
As for the 9/11 trial, I’ve already got my Coliseum tickets, and know how I’ll vote:
[PS: the links in the first block quote aren’t working.]
Huh? He can’t express himself in English worth a damn either …
Yes, the book is essentially blocked in this country, because there’s no publishing agreement here, or so I’m told.
Notice the venom with which Welner attacks his opponents, the threats to sue. He is quite the snapping guard dog for them, isn’t he. That showed in his op-ed in the Washington Post last December, answering an earlier article by another Khadr expert psychiatrist, retired Brigadier General Stephen Xenakis.
In my article discussing the dueling op-eds, I linked to a Jurist piece by Andrea Prasnow that speculated upon why the defense experts had not testified.
Although Khadr signed a sworn statement admitting that he was guilty, it is quite possible the mental health experts believe in his innocence as well. If they testified to that, Khadr’s guilty plea could have been declared “improvident” and Khadr could have been forced to go on trial. (Khadr’s plea agreement specifically states if the stipulation of fact – his detailed admission of guilt – is contradicted, his plea agreement can be withdrawn).
Meanwhile, it’s worth remembering that Welner relied heavily in his testimony on the work of Danish psychologist Nicolai Sennels. Welner claimed that Sennels was “lauded” by the Danish Psychological Association. An email query I sent to the Danish Psych Assn was never answered. What I wrote at the time (link is above):
Link for quotes from Sennels
Ah jeebus. I’m going back to bed.
Just posted on it. Fascinating stuff.
I agree with you. I’m guessing that, now that Khadr really doesn’t have access to the law, he’ll get the purportedly fake sentence rather than the one he thought he was getting.
Yup. It was definitely ambiguous. And remains so. He’ll drag his feet forever, I believe.
Do you have recent evidence that this is taking place now, while he’s serving his sentence?
I have tears in my eyes, I am so happy.
Thanks very much for that. My worry is that the plea deal strangles other things Khadr can do, even when/if he is freed. I believe such conditions can be challenged in the courts in Canada, but we’re a lot of steps away from that right now.
The plea deal also required him to submit to US interrogation during this year and to testify for the US gov against others. I don’t know whether any of that has occurred.
I know…I know…but it must be a ray of sunshine for him.
Thanks so much for all of that. I am reading it with delight. The court has been told he’s a fine, intelligent, kind young man. But no matter. Racist psychiatrists are more *pursuasive.*
Khadr is not getting home schooling, but according to the article, attorneys and paralegals help him with the college professors curriculum when they visit. Of course, he remains under “punitive” detention, and the article makes clear that they are in solitary much of the time. And that’s only if we can believe the camp authorities. The attorneys are stating that conditions are much as they were in the early days of Guantanamo, with an emphasis on isolation.
Thanks so much, Jeff. I think we are all trying to be so hopeful for him in spite of all contrary indications.
Thanks for the great links on this, everybody!
grimmlok says:
Silly. White people don’t use violent rhetoric. That’s called persuasion.
Now I ask ya, lsls, what WOULD the empire of the United States be if it couldn’t destroy the planet several times over?
It does matter. It’s not whining; it’s the rule of law. Calling you a whiner is beneath contempt and should be way beyond the pale. They are disgraceful.
Please keep on ‘whining,’ Candace. Damn well keep on whining until those self-serving, self-important usurping abusers of government power hear you in their dreams. I’m counting on it. Especially while powerful, independent federal judges like Stephen Breyer, with every reason and responsibility to know better, remain inexcusably indifferent to the profound and dangerous consequences of their failure to act to end the Guantanamo-born presidential justice system in this nation.
That new presidential justice system of indefinite detention and occasional show trials is an ad hoc, arbitrary system in which the lawyers for the President’s prisoners – if and when such volunteer attorneys can be found, and are deemed acceptable by the presidential jailer – are all muzzled by the presidential branch of government, even when those prisoners through their lawyers are finally – years late – granted a brief audience before a federal judge in one district of our independent Judicial Branch of government.
That one brief audience before a single district judge now takes place under constraints, imposed since 2008 by the sole appellate court overseeing that district, which have basically reached the point of absurdity – no government proof of fighting by the prisoner needed, no government proof of enemy, or “associated,” group membership by the prisoner needed, no government proof of command-ordered activity by the prisoner needed, etc., etc., for these non-uniformed “wartime” captives.
And that one habeas corpus merits hearing allots the long-abused, foreign, (asserted, but unproven) “armed conflict combatant” prisoners of the American president – “combatants” never given, nor lawfully relieved of, their default POW status under the international law of armed conflict and the Senate-ratified treaty law of the land – their one and only opportunity for an American hearing (though a hearing now evidently unaccompanied by a remedy, with Justice Breyer’s concurrence) that might belatedly – if the judge has integrity and isn’t overturned – impartially assess the merits of their “armed conflict”-justified, presidentially-ordered detention.
While the years pass for the presidential prisoners, the muzzling of their volunteer attorneys and the oppressive detention conditions of the prisoners themselves both ensure that people like Supreme Court Justice Stephen Breyer can continue to live in blissful, irresponsible ignorance in their ivory towers, with no unpleasant reports from said detainee lawyers, not to mention the non-English-speaking detainees themselves, to disturb them in their perusal of the daily newspapers.
Another of the many unsung lawyers for our presidential prisoners – laboring, like Candace Gorman, Sabin Willett, and Omar Khadr’s many military and civilian attorneys, in thankless obscurity in lonely defense of the principles which founded this nation – is Michel Paradis, an attorney employed by the Pentagon’s Office of Military Commissions to defend one of the handful of charged “war criminals” among the Guantanamo presidential prisoner population.
I applaud and admire Michel Paradis and his team for producing this excellent March 15th reply in the CMCR Oral Argument Round Two briefing for the case of their Guantanamo Commission-convicted client Ali Al Bahlul. A reply that the en banc Court of Military Commission Review made no provision for, and which Paradis pulled together in the five days between the government’s response on March 11th – which included its specious Seminole War defense, and for which the CMCR gave the government almost three weeks longer than Paradis to file a brief replying to the two questions the CMCR asked in January – and the oral argument held on March 17th.
Because the role of our federal legislature has essentially been outsourced, by the representatives of “we, the people,” to the operators of two national political fundraising machines – specifically, to the incumbent-appointed (as opposed to citizen-elected) leadership of two Congressional fundraising groups known as “Parties,” accountable only to their wealthy funders – there are vanishingly few quotes from modern representatives of the people which explain, honor, or passionately invoke our democratic Republic and its revolutionary design for the balance of government power.
But back when Members of Congress still joined Parties, when they joined at all, because of the policy outcomes the Party both pledged to pursue and actually pursued (without, as is now the case, also ceding the power of their office to the Party machine, in order to retain, above all, their personal prestige and government salary), some of those American legislators publicly said a thing or two, about another notorious example of presidential/military abuse of power, that puts the buck-passing Stephen Breyers and Carl Levins of the nation to shame.
Is their view then, sir, correct? Were Arbuthnot and Ambrister tried by a court martial, or merely examined by a board of officers?
A court martial is either a general court for the trial of all offences whatever, or a regimental or garrison court, for the trial of offences not capital. The former must consist of five, and may consist of thirteen officers. The latter cannot exceed three. A prisoner was here sentenced to death, and the assemblage of officers who sentenced him to that punishment consisted of thirteen; it was, therefore, either a general court martial or no court at all. A general court martial is required, by the rules and articles of war, to consist of “any number of commissioned officers from five to thirteen; but it shall not consist of less than thirteen, where than number can be convened without manifest injury to the service.” The court which tried Arbuthnot and Ambrister consisted of thirteen officers, with a supernumerary appointed to act, in case of unforeseen absence or incapacity of any one of that number. A general court martial is required to have a judge advocate, whose duty it is to administer to the officers the oath prescribed by the sixty-ninth article of war, and to act as counsel for the accused as well as the court. The court which tried Arbuthnot and Ambrister had a judge advocate, who administered the oath required by law, and interrogated the witnesses. The prisoner may challenge any member of a general court martial appointed to try him. Arbuthnot and Ambrister were called upon to exercise this privilege. The prisoner before a court martial is regularly arraigned upon charges and specifications filed against him. So were Arbuthnot and Ambrister. He is entitled to counsel if he requires it. Arbuthnot made application for counsel, and counsel was allowed him. A court martial sits with open doors, except when it decides question, and then the doors are closed. So proceeded the court which tried these prisoners. A court martial has only a limited jurisdiction, both as to offenses and persons. So this court decided, for, of the third charge and specification against Arbuthnot, the court decided, “upon the suggestion of a member, after mature deliberation, that it had no jurisdiction.” A court martial can sit, unless by express permission from the officer creating it, only between certain hours of the day. This court was, by order, allowed to sit without regard to hours. In the organization of a general court martial the members are seated alternately, according to rank, on each side of the President. So was this court arranged. A court martial records, along with a minute of its proceedings, all the testimony laid before it. So did this court. It is its special province to decide on the the guilt or innocence of the accused, and on the punishment, if any, which shall be inflicted upon them. So was this court required to do, and so it did. A general court martial is required to pronounce upon every charge and specification exhibited against a prisoner. This court obeyed this requisition by acquitting the prisoner, Arbuthnot, of being a spy, and responding to all the charges and specifications against him except that of which they disclaimed any jurisdiction. A general court martial cannot sentence a prisoner to death, without the concurrence of two-thirds of its members. A concurrence of two-thirds of the court is here certified.
Conforming in so many particulars to the articles and usages of war, it is to be greatly deplored that this court martial, and the General who convened it, departed from both in the most important essentials of justice. For neither the articles of war, nor the treaties on courts martial, authorized the trial of Arbuthnot or Ambrister by the court which tried them. [Representative Mercer quotes Macomb here re those subject to court martial, and adds: and by a special act of Congress, “all spies.”]
In this enumeration of persons subject to the cognizance of an American court martial, a search will be made in vain for a description corresponding with Arbuthnot and Ambrister, after the former had been acquitted of being a spy.
On February 5th and 6th, 1819, Revolutionary War infantry Captain (and War of 1812 veteran) Representative Philip Reed of Virginia, a committee member, said [select Image 1065 & Image 1069, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress (for Reed’s personal account of his own dramatic actions in the deliberate execution of a deserter during the Revolutionary War, at George Washington’s direction, select Image 1063)]:
I agree with the honorable gentleman from Ohio (Mr. HARRISON) in the view that he presented of courts martial, &c. That gentleman has correctly stated, that the army too has its common law. The common law of the army, like other common law, is applicable in the rule only to courts, to tribunals properly and legally constituted. The common law of the army gives no such an increased power or application in its principles. This common law applies also to the common routine of military duty. […]
The whole system of common law of the army, so far, at least, as it relates to the rules of evidence, is the same as in criminal courts, as has already been correctly stated by an honorable gentleman from Virginia, (Mr. T. M. NELSON.) […] There are only two denominations of courts recognised in the army, courts martial and courts of inquiry. This has been called a special court. But that does not alter the character of the tribunal; it was still, to all intents and purposes, a general court martial. I know that general courts martial are sometimes called special, perhaps from a want of attention in the phraseology of the order making them. I have sometimes heard them called special when ordered to try a particular case; but all this does not alter or change the character of the court; the President [James Monroe] has denominated this a court martial; the Secretary of State [John Quincy Adams] has called it a court martial; General Jackson himself calls it a court martial. […]
[…] You, sir, claim the right of expatriation – the principle is contended for on the floor of this House. If it be a natural right, as asserted, that the citizens of the United States, or the subjects of any other nation, do possess this right, and a right to associate themselves with any other society or nation – can the nation from whom they have separated themselves prescribe to these people the society or nation to whom they shall attach themselves? I believe not. What right have you to control their will – to tell them whether they shall become the members of civilized or savage society? […] These Englishmen, then, according to your own principles, possessed these rights, and did exercise them. They attached themselves to a savage society; but it will not be denied that the Indians are independent nations; they are recognized as such by the treaties constantly made with them, many of which have been ratified during the present session. […] An honorable gentleman from Pennsylvania (Mr. BALDWIN) has, in my opinion, entirely mistaken the law, when he spoke of “confederacies, conspiracies, and combinations,” as applied to the case of Arbuthnot and Ambrister.
Besides, it cannot be pretended that a court martial has cognizance of the crime of conspiracy, or that this was a prosecution of that sort. And the gentleman from Pennsylvania admitted that it could not, technically, be so considered. […] But what jurisdiction had this court? Whence did they derive it? It was, say the defenders of the proceedings, an offence against the laws of nations, not punishable, however, by the civil tribunals of our country. The Constitution says that Congress may define and punish piracies and felonies on the high seas, and offences against the laws of nations. It is, then, for Congress to give courts martial this power, if they possess it. If this has been done, it is to be found only in the articles of war. Look over that code, you find no power given to courts martial to punish any offence with which these men were charged, except, only, that of a spy; and of this they were not found guilty. But, says the gentleman from Ohio, (Mr. HARRISON,) to be sure the power is not expressly given by the articles of war, but the power must necessarily reside in these courts. Your code, says he, is a very short one, and cannot be supposed to embrace or provide for every case. It is true this code is a short code, but it is a bloody one, (perhaps this may be necessary;) but are laws of this description to be extended by implication? Your Supreme Court have decided that they have no power to punish offences, but what is given them by the laws of the United States, and have no common law jurisdiction; and, if your Supreme Court have not the power to extend their jurisdiction, surely your militlary courts cannot possess any such power.
I just couldn’t let another informative comment like this go by without thanking you, powwow. Your knowledge of these matters is mind boggling!
As you say, in the Washington-based scheme of things, the Omar Khadr trial was a sideshow. He was one child, mistakenly and wrongly picked up in the wrong place at the wrong time along with hundreds of adults.
The big show, the center ring, is to establish the legitimacy of its replacement, ad hoc, inherently conflicted, corrupt “system of justice”. That’s how we rely on to establish facts and impose legal consequences on them. Coming soon to a theater near you. Did you get your drone de-coder ring yet?
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Some Context on MI’s Emergency Financial Manager Law PJ Crowley: “Will My Words Be Credible?”
Thanks to you and harpie.
I already have that rule…but even that is not always the answer to my problems! ;-)
Well, it’s my best excuse this morning. That, plus I’m trying to pack for the move.
As for the 9/11 trial, I’ve already got my Coliseum tickets, and know how I’ll vote:
[PS: the links in the first block quote aren’t working.]
Huh? He can’t express himself in English worth a damn either …
Yes, the book is essentially blocked in this country, because there’s no publishing agreement here, or so I’m told.
Notice the venom with which Welner attacks his opponents, the threats to sue. He is quite the snapping guard dog for them, isn’t he. That showed in his op-ed in the Washington Post last December, answering an earlier article by another Khadr expert psychiatrist, retired Brigadier General Stephen Xenakis.
In my article discussing the dueling op-eds, I linked to a Jurist piece by Andrea Prasnow that speculated upon why the defense experts had not testified.
Although Khadr signed a sworn statement admitting that he was guilty, it is quite possible the mental health experts believe in his innocence as well. If they testified to that, Khadr’s guilty plea could have been declared “improvident” and Khadr could have been forced to go on trial. (Khadr’s plea agreement specifically states if the stipulation of fact – his detailed admission of guilt – is contradicted, his plea agreement can be withdrawn).
Meanwhile, it’s worth remembering that Welner relied heavily in his testimony on the work of Danish psychologist Nicolai Sennels. Welner claimed that Sennels was “lauded” by the Danish Psychological Association. An email query I sent to the Danish Psych Assn was never answered. What I wrote at the time (link is above):
Link for quotes from Sennels
Ah jeebus. I’m going back to bed.
Just posted on it. Fascinating stuff.
I agree with you. I’m guessing that, now that Khadr really doesn’t have access to the law, he’ll get the purportedly fake sentence rather than the one he thought he was getting.
Yup. It was definitely ambiguous. And remains so. He’ll drag his feet forever, I believe.
Do you have recent evidence that this is taking place now, while he’s serving his sentence?
I have tears in my eyes, I am so happy.
Thanks very much for that. My worry is that the plea deal strangles other things Khadr can do, even when/if he is freed. I believe such conditions can be challenged in the courts in Canada, but we’re a lot of steps away from that right now.
The plea deal also required him to submit to US interrogation during this year and to testify for the US gov against others. I don’t know whether any of that has occurred.
I know…I know…but it must be a ray of sunshine for him.
Thanks so much for all of that. I am reading it with delight. The court has been told he’s a fine, intelligent, kind young man. But no matter. Racist psychiatrists are more *pursuasive.*
Khadr is not getting home schooling, but according to the article, attorneys and paralegals help him with the college professors curriculum when they visit. Of course, he remains under “punitive” detention, and the article makes clear that they are in solitary much of the time. And that’s only if we can believe the camp authorities. The attorneys are stating that conditions are much as they were in the early days of Guantanamo, with an emphasis on isolation.
Thanks so much, Jeff. I think we are all trying to be so hopeful for him in spite of all contrary indications.
Thanks for the great links on this, everybody!
grimmlok says:
Silly. White people don’t use violent rhetoric. That’s called persuasion.
Now I ask ya, lsls, what WOULD the empire of the United States be if it couldn’t destroy the planet several times over?
It does matter. It’s not whining; it’s the rule of law. Calling you a whiner is beneath contempt and should be way beyond the pale. They are disgraceful.
Please keep on ‘whining,’ Candace. Damn well keep on whining until those self-serving, self-important usurping abusers of government power hear you in their dreams. I’m counting on it. Especially while powerful, independent federal judges like Stephen Breyer, with every reason and responsibility to know better, remain inexcusably indifferent to the profound and dangerous consequences of their failure to act to end the Guantanamo-born presidential justice system in this nation.
That new presidential justice system of indefinite detention and occasional show trials is an ad hoc, arbitrary system in which the lawyers for the President’s prisoners – if and when such volunteer attorneys can be found, and are deemed acceptable by the presidential jailer – are all muzzled by the presidential branch of government, even when those prisoners through their lawyers are finally – years late – granted a brief audience before a federal judge in one district of our independent Judicial Branch of government.
That one brief audience before a single district judge now takes place under constraints, imposed since 2008 by the sole appellate court overseeing that district, which have basically reached the point of absurdity – no government proof of fighting by the prisoner needed, no government proof of enemy, or “associated,” group membership by the prisoner needed, no government proof of command-ordered activity by the prisoner needed, etc., etc., for these non-uniformed “wartime” captives.
And that one habeas corpus merits hearing allots the long-abused, foreign, (asserted, but unproven) “armed conflict combatant” prisoners of the American president – “combatants” never given, nor lawfully relieved of, their default POW status under the international law of armed conflict and the Senate-ratified treaty law of the land – their one and only opportunity for an American hearing (though a hearing now evidently unaccompanied by a remedy, with Justice Breyer’s concurrence) that might belatedly – if the judge has integrity and isn’t overturned – impartially assess the merits of their “armed conflict”-justified, presidentially-ordered detention.
While the years pass for the presidential prisoners, the muzzling of their volunteer attorneys and the oppressive detention conditions of the prisoners themselves both ensure that people like Supreme Court Justice Stephen Breyer can continue to live in blissful, irresponsible ignorance in their ivory towers, with no unpleasant reports from said detainee lawyers, not to mention the non-English-speaking detainees themselves, to disturb them in their perusal of the daily newspapers.
Another of the many unsung lawyers for our presidential prisoners – laboring, like Candace Gorman, Sabin Willett, and Omar Khadr’s many military and civilian attorneys, in thankless obscurity in lonely defense of the principles which founded this nation – is Michel Paradis, an attorney employed by the Pentagon’s Office of Military Commissions to defend one of the handful of charged “war criminals” among the Guantanamo presidential prisoner population.
I applaud and admire Michel Paradis and his team for producing this excellent March 15th reply in the CMCR Oral Argument Round Two briefing for the case of their Guantanamo Commission-convicted client Ali Al Bahlul. A reply that the en banc Court of Military Commission Review made no provision for, and which Paradis pulled together in the five days between the government’s response on March 11th – which included its specious Seminole War defense, and for which the CMCR gave the government almost three weeks longer than Paradis to file a brief replying to the two questions the CMCR asked in January – and the oral argument held on March 17th.
Because the role of our federal legislature has essentially been outsourced, by the representatives of “we, the people,” to the operators of two national political fundraising machines – specifically, to the incumbent-appointed (as opposed to citizen-elected) leadership of two Congressional fundraising groups known as “Parties,” accountable only to their wealthy funders – there are vanishingly few quotes from modern representatives of the people which explain, honor, or passionately invoke our democratic Republic and its revolutionary design for the balance of government power.
But back when Members of Congress still joined Parties, when they joined at all, because of the policy outcomes the Party both pledged to pursue and actually pursued (without, as is now the case, also ceding the power of their office to the Party machine, in order to retain, above all, their personal prestige and government salary), some of those American legislators publicly said a thing or two, about another notorious example of presidential/military abuse of power, that puts the buck-passing Stephen Breyers and Carl Levins of the nation to shame.
Is their view then, sir, correct? Were Arbuthnot and Ambrister tried by a court martial, or merely examined by a board of officers?
A court martial is either a general court for the trial of all offences whatever, or a regimental or garrison court, for the trial of offences not capital. The former must consist of five, and may consist of thirteen officers. The latter cannot exceed three. A prisoner was here sentenced to death, and the assemblage of officers who sentenced him to that punishment consisted of thirteen; it was, therefore, either a general court martial or no court at all. A general court martial is required, by the rules and articles of war, to consist of “any number of commissioned officers from five to thirteen; but it shall not consist of less than thirteen, where than number can be convened without manifest injury to the service.” The court which tried Arbuthnot and Ambrister consisted of thirteen officers, with a supernumerary appointed to act, in case of unforeseen absence or incapacity of any one of that number. A general court martial is required to have a judge advocate, whose duty it is to administer to the officers the oath prescribed by the sixty-ninth article of war, and to act
 as counsel for the accused as well as the court. The court which tried Arbuthnot and Ambrister had a judge advocate, who administered the oath required by law, and interrogated the witnesses. The prisoner may challenge any member of a general court martial appointed to try him. Arbuthnot and Ambrister were called upon to exercise this privilege. The prisoner before a court martial is regularly arraigned upon charges and specifications filed against him. So were Arbuthnot and Ambrister. He is entitled to counsel if he requires it. Arbuthnot made application for counsel, and counsel was allowed him. A court martial sits with open doors, except when it decides question, and then the doors are closed. So proceeded the court which tried these prisoners. A court martial has only a limited jurisdiction, both as to offenses and persons. So this court decided, for, of the third charge and specification against Arbuthnot, the court decided, “upon the suggestion of a member, after mature deliberation, that it had no jurisdiction.” A court martial can sit, unless by express permission from the officer creating it, only between certain hours of the day. This court was, by order, allowed to sit without regard to hours. In the organization of a general court martial the members are seated alternately, according to rank, on each side of the President. So was this court arranged. A court martial records, along with a minute of its proceedings, all the testimony laid before it. So did this court. It is its special province to decide on the the guilt or innocence of the accused, and on the punishment, if any, which shall be inflicted upon them. So was this court required to do, and so it did. A general court martial is required to pronounce upon every charge and specification exhibited against a prisoner. This court obeyed this requisition by acquitting the prisoner, Arbuthnot, of being a spy, and responding to all the charges and specifications against him except that of which they disclaimed any jurisdiction. A general court martial cannot sentence a prisoner to death, without the concurrence of two-thirds of its members. A concurrence of two-thirds of the court is here certified.
Conforming in so many particulars to the articles and usages of war, it is to be greatly deplored that this court martial, and the General who convened it, departed from both in the most important essentials of justice. For neither the articles of war, nor the treaties on courts martial, authorized the trial of Arbuthnot or Ambrister by the court which tried them. [Representative Mercer quotes Macomb here re those subject to court martial, and adds: and by a special act of Congress, “all spies.”]
In this enumeration of persons subject to the cognizance of an American court martial, a search will be made in vain for a description corresponding with Arbuthnot and Ambrister, after the former had been acquitted of being a spy.
On February 5th and 6th, 1819, Revolutionary War infantry Captain (and War of 1812 veteran) Representative Philip Reed of Virginia, a committee member, said [select Image 1065 & Image 1069, and subsequent images, in the Annals of Congress for the Second House Session of the 15th Congress (for Reed’s personal account of his own dramatic actions in the deliberate execution of a deserter during the Revolutionary War, at George Washington’s direction, select Image 1063)]:
I agree with the honorable gentleman from Ohio (Mr. HARRISON) in the view that he presented of courts martial, &c. That gentleman has correctly stated, that the army too has its common law. The common law of the army, like other common law, is applicable in the rule only to courts, to tribunals properly and legally constituted. The common law of the army gives no such an increased power or application in its principles. This common law applies also to the common routine of military duty. […]
The whole system of common law of the army, so far, at least, as it relates to the rules of evidence, is the same as in criminal courts, as has already been correctly stated by an honorable gentleman from Virginia, (Mr. T. M. NELSON.) […] There are only two denominations of courts recognised in the army, courts martial and courts of inquiry. This has been called a special court. But that does not alter the character of the tribunal; it was still, to all intents and purposes, a general court martial. I know that general courts martial are sometimes called special, perhaps from a want of attention in the phraseology of the order making them. I have sometimes heard them called special when ordered to try a particular case; but all this does not alter or change the character of the court; the President [James Monroe] has denominated this a court martial; the Secretary of State [John Quincy Adams] has called it a court martial; General Jackson himself calls it a court martial. […]
[…] You, sir, claim the right of expatriation – the principle is contended for on the floor of this House. If it be a natural right, as asserted, that the citizens of the United States, or the subjects of any other nation, do possess this right, and a right to associate themselves with any other society or nation – can the nation from whom they have separated themselves prescribe to these people the society or nation to whom they shall attach themselves? I believe not. What right have you to control their will – to tell them whether they shall become the members of civilized or savage society? […] These Englishmen, then, according to your own principles, possessed these rights, and did exercise them. They attached themselves to a savage society; but it will not be denied that the Indians are independent nations; they are recognized as such by the treaties constantly made with them, many of which have been ratified during the present session. […] An honorable gentleman from Pennsylvania (Mr. BALDWIN) has, in my opinion, entirely mistaken the law, when he spoke of “confederacies, conspiracies, and combinations,” as applied to the case of Arbuthnot and Ambrister.
Besides, it cannot be pretended that a court martial has cognizance of the crime of conspiracy, or that this was a prosecution of that sort. And the gentleman from Pennsylvania admitted that it could not, technically, be so considered. […] But what jurisdiction had this court? Whence did they derive it? It was, say the defenders of the proceedings, an offence against the laws of nations, not punishable, however, by the civil tribunals of our country. The Constitution says that Congress may define and punish piracies and felonies on the high seas, and offences against the laws of nations. It is, then, for Congress to give courts martial this power, if they possess it. If this has been done, it is to be found only in the articles of war. Look over that code, you find no power given to courts martial to punish any offence with which these men were charged, except, only, that of a spy; and of this they were not found guilty. But, says the gentleman from Ohio, (Mr. HARRISON,) to be sure the power is not expressly given by the articles of war, but the power must necessarily reside in these courts. Your code, says he, is a very short one, and cannot be supposed to embrace or provide for every case. It is true this code is a short code, but it is a bloody one, (perhaps this may be necessary;) but are laws of this description to be extended by implication? Your Supreme Court have decided that they have no power to punish offences, but what is given them by the laws of the United States, and have no common law jurisdiction; and, if your Supreme Court have not the power to extend their jurisdiction, surely your militlary courts cannot possess any such power.
I just couldn’t let another informative comment like this go by without thanking you, powwow. Your knowledge of these matters is mind boggling!
As you say, in the Washington-based scheme of things, the Omar Khadr trial was a sideshow. He was one child, mistakenly and wrongly picked up in the wrong place at the wrong time along with hundreds of adults.
The big show, the center ring, is to establish the legitimacy of its replacement, ad hoc, inherently conflicted, corrupt “system of justice”. That’s how we rely on to establish facts and impose legal consequences on them. Coming soon to a theater near you. Did you get your drone de-coder ring yet?
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