I'm not going to speculate as to what is or what is not controlling
A US military judge (Marine Col. Robert S. Chester) presiding over one of the military commission proceedings that resumed [JURIST report] at Guantanamo Bay Tuesday in the case against Abdul Zahir [JURIST report], one of ten detainees who have been charged with war crimes could not decide what body of law would be applied in the case against Abdul Zahir When asked by Zahir's military counsel Army Lt. Col. Thomas Bogar.(AP Report)
Judge Col. Robert Chester replied "Obviously military law is going to have some application. I suppose we will look at military criminal law and federal criminal laws and procedures." Asked to be more specific as to which laws applied , he crisply retorted, "I'm not going to speculate as to what is or what is not controlling."
The chief military prosecutor, Air Force Col. Morris Davis, told a news conference later that the judge can choose from several standards of law "to provide a full and fair trial."(AP report)
This confusion arises it appears because the testy Judge is trying to force a quare peg of terrorism into the round holes of civil and military law. The Bush Administration’s attempt to frame its detention and prosecution policies in the “war on terror” within the rigorous framework of the law of war, and the far more logical approach of prosecuting alleged combatants either in a manner similar to rules long established for prisoners of war or as alleged terrorists under U.S. Code Title 18 (under which alleged terrorists ( but evidently mentally challenged if not severely ill) detained in the United States, such as Zacarias Moussaoui and Richard Reid, have been solely prosecuted and convicted).
No trial date was set by the JUdge, and Zahir did not enter a plea.Abdul Zahir has been formally charged with conspiracy, aiding the enemy and attacking civilians, and is accused of working as a translator and money-man for former Taliban rulers in Afghanistan and with al Qaeda. The accusations also implicate Zahir in a 2002 grenade attack that injured three journalists ... in which a grenade was thrown through the window of their vehicle as they traveled toward Gardez. Toronto Star correspondent Kathleen Kenna suffered serious leg injuries.. The DOD charged five other detainees in November and the first four in 2004, but none of their trials under a tribunal of US military officers has been completed.
Zahir is also was charged with producing anti-American leaflets to recruit Afghans living near the U.S. Embassy in Kabul and near the U.S. military bases in Afghanistan to commit terrorist attacks against U.S. soldiers.
The Department of Defense announced that charges were approved and referred to a military commission in the case of Abdul Zahir by the appointing authority, John D. Altenburg Jr., on Jan. 18, 2006.
Charge Sheet against Abdul Zahir 4 Pages - V. interesting re conspiracy charges(PDF Alert)
The Guantanamo tribunals are the first military commission proceedings since World War II; last month the US Supreme Court heard arguments in Hamdan v. Rumsfield [Duke Law Backgrounder] on whether such tribunals are legal as currently constituted. Legal scholars have argued that the US government has confused matters by trying terrorism cases under the law of war, in the process alleging crimes by some detainees - such as "conspiracy to commit war crimes" - that do not exist under either US or international law.
The last time the crime of conspiracy appeared in association with war crimes was in the 1945 London Charter of the Nuremberg International Military Tribunal. It was swiftly abandoned by the judges during the Nuremberg trials and only "conspiracy to commit crimes against the peace" survived. The 1948 Genocide Convention established the separate crime of a conspiracy to commit genocide, but genocide, regarded as the most heinous of atrocity crimes, is not legally defined as a war crime per se any more than are crimes against humanity (for which there is no crime of conspiracy either).
The statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), approved by the U.N. Security Council in 1993 and 1994, respectively, and of the Special Court for Sierra Leone, all with full U.S. support, identify the crime of conspiracy only with genocide consistent with the Genocide Convention.
Neither the Uniform Code of Military Justice nor Title 18 of the U.S. Code, which includes the War Crimes Act of 1996 as amended, aligns the crime of conspiracy with the law of war. It is simply implausible, as the Nuremberg judges discovered, to sweep vast numbers of individuals into conspiracy theories about war crimes.
The US Supreme Court is soon to hear a challenge from Salim Ahmed Hamdan against President Bush’s power to create such military tribunals to put Guantanamo prisoners on trial for war crimes.
Pentagon officials have admitted that only 50 to 75 of the approximately 500 Guantanamo detainees are likely to be charged because the DOD will only charge detainees whose actions rose to the level of "war crimes". Aside from the ten detainees already charged, President Bush has declared four other detainees eligible for trial under the military tribunal (so far).
This is what is happening, what the world's most powerful nation is doing today and every day, and what Jack Straw and Condileezza Rice have been parading around as democratic justice... plus the odd bit of rendition ... torture and the odd murder assisted by unethical medical practices.
Of course Condi encourages protest - "methinks she doth protest too much" but she still doesn't give a flying fuck what anybody thinks, applauded wildly by Poodle Jack.
Pic = photograph of a drawing by sketch artist Janet Hamlin (C) AP