That was awesome. Too bad he can’t remember that now.

The Grammar Police

The general scope and reach of military commissions has been for use with respect to uniformed military and with respect to members of military who are non-uniformed and acting as spies and saboteurs. It’s not the case that we have never had non-uniformed, non-state sponsored, groups espousing terroristic destruction and killing.

From the Anarachists to militant groups like the Black Panthers, to Lambdin Milligan’s secret society, for non-uniformed, non-spies, we have always used the BETTER THAN, SUPERIOR TO, civilian courts for trial. An option, btw, that opens up more avenues for prosecution, as under the laws of war something like money laundering (or material support under the MCAs) is not a war crime.

And in particular, when a commission is not being conducted in a battle theatre (defined by the courts as a place where the courts are unable to be open and operating due to battle conditions)to address exigencies, but instead in a setting where those to be tried have been held for years and civilian courts have already been intrinsically interwoven into the handling of their cases (via the jurisdiction, Raul, habeas, Hamdi/Boumediene etc. decisions) there is not only no reason to use military commissions, but they both limit the scope of the crimes that can be charged AND THEY DIGNIFY MURDERS as being “soldiers.”

Not only that, but to the extent we are going to start sentencing “their” criminals as war criminals, we will have to accept the comparison on our front. A crazy Zubaydah who helps handle travel arrangements and isn’t even a member of al-Qaeda and what will be done with him vis a vis US soldiers who took an Iraqi general’s family hostage, then when he turned himself in to see his boys, proceeded to torture him directly and to hand him over to CIA and non-domestic affiliates for more torture, abuse his juvenile family members, stage a mock execution of his 15 yo son that he did not know was mock right before they finally suffocate him to death.

How do you hold up the result of that military commission (finding, I believe, that under the Laws of War a 60 or so day period spent at home and in church with a penalty was the sufficient penalty) with what has already been done to Zubaydah, much less what will be requested and implemented?

Leiberman and McCain don’t bother to mention one of the biggest problems with commissions – that most of those we have taken into detention are not only not Al-Qaeda operatives who attacked the US, but most were not detained in any kind of combat proceeding – most were not combatants to ever become illegal combatants.

Long winded, of interest to few, but still offered fwiw, from part of the argument in the Milligan case, with respect to the issue of military commissions for non-uniformed insurgent members of secretive societies plotting against the country:

Sir Matthew Hale, in his History of the Common Law,36 says:

‘Touching the business of martial law, these things are to be observed, viz.:
‘First. That in truth and reality it is not a law, but something indulged rather than allowed as a law; the necessity of government, order, and discipline in an army, is that only which can give those laws a countenance: quod enim necessitas cogit defendit.
‘Secondly. This indulged law was only to extend to members of the army, or to those of the opposed army, and never was so much indulged as intended to be executed or exercised upon others, for others who had not listed under the army had no color or reason to be bound by military constitutions applicable only to the army, whereof they were not parts, but they were to be ordered and governed according to the laws to which they were subject, though it were a time of war.
‘Thirdly. That the exercises of martial law, whereby any person should lose his life, or member, or liberty, may not be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.

******************
I will now show that military tribunals for civilians, or non- military persons, whether in war or peace, are inconsistent with the liberty of the citizen, and can have no place in constitutional government. This is a legitimate argument even upon a question of interpretation; for if there be, as I think there is not, room left for interpretation of what seem to be the plain provisions of the Constitution, then the principles of liberty, as they were understood by the fathers of the Republic; the maxims of free government, as they were [71 U.S. 2, 35] accepted by the men who framed and those who adopted the Constitution; and those occurrences in the history of older states, which they had profoundly studied, may be called in to show us what they must have meant by the words they used.

The source and origin of the power to establish military commissions, if it exist at all, is in the assumed power to declare what is called martial law. I say what is called martial law, for strictly there is no such thing as martial law; it is martial rule; that is to say, the will of the commanding officer, and nothing more, nothing less.

On this subject, as on many others, the incorrect use of a word has led to great confusion of ideas and to great abuses. People imagine, when they hear the expression martial law, that there is a system of law known by that name, which can upon occasion be substituted for the ordinary system; and there is a prevalent notion that under certain circumstances a military commander may, by issuing a proclamation, displace one system, the civil law, and substitute another, the martial. A moment’s reflection will show that this is an error. Law is a rule of property and of conduct, prescribed by the sovereign power of the state. The Civil Code of Louisiana defines it as ‘a solemn expression of legislative will.’ Blackstone calls it ‘a rule of civil conduct prescribed by the supreme power in the state;’ . . . ‘not a transient, sudden order from a superior to or concerning a particular person, but something permanent, uniform, and universal.’ Demosthenes thus explains it: ‘The design and object of laws is to ascertain what is just, honorable, and expedient; and when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all.’

…
What is ordinarily called martial law is no law at all. Wellington, in one of his despatches from Portugal, in 1810, in his speech on the Ceylon affair, so describes it.

Let us call the thing by its right name; it is not martial law, but martial rule. And when we speak of it, let us speak of it as abolishing all law, and substituting the will of the military commander, and we shall give a true idea of the thing, and be able to reason about it with a clear sense of what we are doing.

…

The nation began its life in 1776, with a protest against military usurpation. It was one of the grievances set forth in the Declaration of Independence, that the king of Great Britain had ‘affected to render the military independent of and superior to the civil power.’ The attempts of General Gage, in Boston, and of Lord Dunmore, in Virginia, to enforce martial rule, excited the greatest indignation. Our fathers never forgot their principles; and though the war by which they maintained their independence was a revolutionary one, though their lives depended on their success in arms, they always asserted and enforced the subordination of the military to the civil arm.
…

In the year 1322, the Earl of Lancaster and the Earl of Hereford rebelled against the authority of Edward II. They collected an army so large that Edward was compelled to raise forty thousand men to withstand them. The rebellious earls posted their forces on the Trent, and the armies of the king confronted them. They fought at Boroughbridge; the insurgent forces were overthrown; Hereford was slain and Lancaster taken in arms at the head of his army, and amid the noise of battle was tried by a court-martial, sentenced to death, and executed. When Edward III came into power, eight years later, on a formal petition presented to Parliament by Lancaster’s son, setting forth the facts, the case was examined and a law was enacted reversing the attainder, and declaring: ‘1. That in time of peace no man ought to be adjudged to death for treason or any other offence without being arraigned and held to answer. 2. That regularly when the king’s courts are open it is a time of peace in judgment of law; and 3. That no man ought to be sentenced to death, by the record of the king, without his legal trial per pares.’ 37

So carefully was the line drawn between civil and martial law five hundred years ago.

emph added

There’s more there and despite the age of the text and stylings of the language, the bones are all assembled for what should happen under a rule of law.

If the corporations that buy and pay for McCain, Lieberman, Feinstein, etal.’s senate seats insisted that they preserve, protect & defend the U.S. Constitution, these hacks couldn’t get away with flaunting their ignorance so proudly.

SOmebody murders a Fitzgerald Cantor borker and Leiberman thinks we cannot go after that person for a REAL crime, b/c Leiberman and his buddies created these constitutionaly suspect psuedo crimes?

Well if that takess the real crime soff the table, what happens to the criminals if SCOTUS comes to the conlcusion–which is not far fetched–that the psuedo crimes are unconstitutional.

Cause don’t forget, Double Jepardy will now ba an issue.

Oh, but it’s more important to keep trying to stick that fig leag back in place than to admit that Shrub era terror legislation ain’t got d**k.

Please note: I did not say blowjob.