Military Courts To Try Violent Settler Extremists

Among several measures aimed at combating a spike in extremist "price tag" settler activity, Bibi Netanyahu has announced that settlers arrested for these sorts of crimes will be tried in military courts, same as violent Palestinian militants (one measure Bibi rejected, over the protests of quite a few members of his cabinet, was officially charging the extremists with terrorism). This created an amusing strange-bedfellows scenario between far-right settler nationalist parties like National Union, and left-wing human rights groups like B'Tselem, both of which are uncomfortable with the usage of military courts (though for the former, of course, it's only a problem when the settlers are subjected to it).

My own position on this is somewhat similar to the stance I took when Iran sentenced a man who had blinded a woman with acid to be himself blinded. As I said then, clearly I think putting out someone's eye as a punishment is barbaric. But there are plenty of attributes of Iran's judicial system I find barbaric, and certainly I don't find it any worse when they're used to punish crimes against women as opposed to punishing women themselves. And in general one of the ways one sees reforms of unjust practices is by ensuring they're enforced against the majority as well as the minority. Here, I'm generally uncomfortable with over-reliance on military courts and am sympathetic to the notion that they do not provide fully fair trials. But if they're going to be the forum by which violent Palestinian attacks against the IDF are tried, then I see no reason to treat violent Israeli settlers any differently.

God Willing

One the things that's really got me hung up about the Hamdan trial is that he really did not seem to be one of the bad guys. He always maintained he was nothing but a menial worker, not a part of al-Qaeda's terrorist network, and has expressed (to my ears, anyway) genuine shock and sadness when he learned of the 9/11 attacks and al-Qaeda's other operations.

Ken Gude's Democracy Arsenal's post, commenting on this NYT article, really gets to the heart of that. Here's the passage from the Times that Gude quotes, an exchange between Hamdan and the military judge who presided over the trial that convicted him of war crimes:

"It was a sorry or sad thing to see innocent people killed," he said as he leaned on the defense table and gestured gently at the military tribunal here. "I personally present my apologies to them if anything what I did have caused them pain."

As he left the sparsely attended courtroom in the hilltop courtroom here, Mr. Hamdan, who at times has shown a mischievous sense of humor, raised his arms and said a good-natured "bye, bye" to the small group.

During pretrial proceedings, Mr. Hamdan, a father of two daughters in Yemen, and the judge, a career Navy lawyer, had regularly exchanged smiles and, on occasion, chats. Before he left the bench, Judge Allred, said a few parting words to the man he had gotten to know in a most unusual way.

"Mr. Hamdan," Judge Allred said, "I hope the day comes that you are able to return to your wife and daughters and your country."

"God willing," Mr. Hamdan said in the rudimentary English he picked up while in American custody.

"Insh-allah," said Judge Allred, repeating the same phrase in Arabic.

And here's Gude's comments:

Remember, this is an exchange between a man who had just been found guilty of war crimes and the judge who had presided over the trial that reached that conclusion. Hamdan appears to be genuinely remorseful about the very small role he played in al Qaeda. Allred shows real compassion for a man obviously caught up in something well beyond anything he ever intended. They then exchange the blessings of God in each other's language.

This moment could have had real power. This moment is what America is. This is the America I know. If it had occurred 5 years ago in a US court it would have sent an incredibly powerful message to the world that we are strong and we are just, and yes, Osama bin Laden murdered 3,000 Americans but he utterly failed to destroy our great country and all that it stands for.

But instead, we are arguing about whether the Pentagon will detain Hamdan indefinitely after his sentence has been completed. What a waste.

I can't help but think that the lenient sentence Hamdan received (only five months after time served) is related to the remorse he clearly feels, as well as the minor role he played in al-Qaeda's infrastructure (and, I'd hope, the fact that the trial against him was a mockery of the judicial system). But even still, that very fact makes his treatment that much more nightmarish. His case is the one that we all feared when these extra-legal detentions and procedurally deficient trials were established: someone who clearly does not deserve the label "war criminal" attached to him, but who may never see freedom because the mechanics by which he's imprisoned are so tied to America's defective political process.

I'm not making much sense; it's late, and I'm opining from the hip. But for whatever reason -- and I can't explain it -- Hamdan's case has always been one that tugged at my heartstrings. He deserved better. We deserved better. The military officers (who by all accounts were quite professional) deserved better than to be drawn into this farce.

The Redemption

In a "highly unusual" move, The US Supreme Court reconsidered a previous decision and granted cert to hear two critical Guantanamo Bay cases, Boumediene v. Bush and Al Odah v. U.S. Because Court rules require five votes instead of the usual four to grant cert in such situations, and due to the unusualness of the case at hand, it is looking like the Court will reverse the D.C. Circuit Court, which would be a victory for detainee rights.

Good. I don't know much about Al Odah, but Boumediene was literally kidnapped from Bosnia by US Special Forces after he was found innocent of the plot we're accusing him of (well, there's another one, but he's got a good alibi--he was in a Bosnian prison when we said he was in Afghanistan). It's time for these travesties to end. Congratulations, Justice Kennedy--you have a rare opportunity to write an opinion for the ages.

More:

The Notebook

Steve Benen

Spencer Ackerman

In This Moment

Off The Case

The folks handling our oh-so-fair military commissions appear to be going for another Swift-Boating. From the International Law blog Opinio Juris:

I have written before about the Bush Administration's war on attorneys who defend individuals accused of terrorism. (See here and here.) A new front has now been opened in that war, with the chief U.S. military prosecutor accusing Major Michael Mori, who is representing David Hicks -- the Australian scheduled to be the first GITMO detainee tried by military commission -- of violating the Orwellian article 88 of the UCMJ, which prohibits the use of "contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession."

This "charge" could force Major Mori off the case, not only indefinitely delaying the trial, but depriving Mr. Hicks of an attorney he knows and trusts. As Major Mori notes, the mere threat of legal prosecution creates a conflict of interest that may prevent him from providing the most effective representation possible.

UPDATE: The always-brilliant PG has more at Blog de Novo.