First Guantanamo Trials Likely to Strain Legality, Credulity

Prof. Neal Katyal of Georgetown has a depressing if unsurprising item in Slate, Gitmo' Better Blues – The folly of the new Guantanamo trials, suggesting that the first round of Gitmo charges will not be big fish, and will not be clear examples of war crimes by fiendish terrorists…but rather…an accountant and the videographer of the Cole bombing. Folks who worked with bad folks, yes, but, as Prof. Katyal puts it,

But despite the tremendous merits of our civilian conspiracy law, these military charges are unconstitutional, inconsistent with international law, and unwise.

They will demonstrate what critics of the military tribunals have been saying all along: that the administration has sought to create an end run around guarantees of fundamental rights enshrined in our Constitution and universally accepted agreements such as the Geneva Conventions.

While glorifying the Cole bombing and moving al-Qaida money are certainly bad acts, if there were any evidence that these two men actually engaged in serious war crimes, it would be in the indictment. It's not. Instead, the government can only allege the amorphous crime of aiding of al-Qaida.

Contrast these vague indictments with the position of Assistant Attorney General Herbert Wechsler during World War II. Wechsler, perhaps the most important 20th-century scholar of American criminal law, deplored a Pentagon proposal to file conspiracy charges against Germans who were not “prime leaders.” To Wechsler, such charges could not be based on ideas drawn from American conspiracy law without “proof of personal participation in a specific crime.” In the absence of such proof, he said, “the force of the broad criminal charge against the leaders may be seriously weakened in the eyes of the world,” especially “if too many individuals are included in it.” Today there is no Wechsler in the administration advising restraint—striking, in light of America's recent experience with the Independent Counsel Act, another device that encouraged overzealousness at the price of balance and fairness. Fairness and process, of course, can give way in an emergency or when the matter concerns Bin Laden or his close associates. But a cameraman and an accountant, even if they double as bodyguards, just don't come close.

Be proud, fellow citizens, of what your country does in your name. Or throw the rascals out.

Oh yeah, and there's this:

To make matters worse, the conspiracy charges in both of the indictments are based largely on conduct that occurred before 9/11, yet military commissions can only adjudicate violations of the laws of war. It is a tremendous stretch to argue that this war began in 1999 or 1989.

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