Thursday, October 25, 2007

Counsel for the Defense (Yes, We don't just shoot em first)


In what can only be described as the latest ironic twist in the sad and strange tale of military commissions, Administration lawyers today filed a motion to dismiss Omar Khadr’s appeal from a special military appeals court decision allowing military commission proceedings to resume at Guantanamo Bay. Administration lawyers argue, in effect, that the Secretary of Defense lacked the authority to issue a military commission rule giving the defense the same ability as the government to seek review of military appeals court decisions.

The rule in question is part of the so-called Manual for Military Commissions, a set of procedures for military commissions issued by the Secretary of Defense in January of this year. The Manual implements the controversial Military Commissions Act of 2006 (MCA). The government’s filing appears to be an effort to hit the “delete” button on language in Rule for Military Commission 908(c)(3), which gives the defense a coequal right to seek review of decisions by the Court of Military Commission Review. Significantly, the MCA required the Secretary to report the rules to Congress for its review prior to commencement of commission proceedings. The Administration filing could be viewed, in effect, as an attempt to change those rules without proper notification of Congress.

Moreover, the government’s position is particularly ironic in light of positions taken before the Court of Military Commission Review in this very case. There, the government argued that the Secretary of Defense had broad authority to issue rules implementing the MCA and another federal statute giving the Secretary the power to delegate his responsibilities to subordinate DoD officials.

The position reflected in the government’s filing is, to say the least, odd coming from an Administration that has arguably made the most expansive claims for executive power in U.S. history. Indeed, the Administration has contended that the President can vary the meaning of federal statutes through so-called “signing statements,” and can ignore federal statutes that, in the Administration’s view, infringe on the President’s powers as Commander-in-Chief. Yet, in the Administration’s view, the responsible executive branch official in this case apparently lacks the authority to interpret the MCA in a way to make the commissions process slightly fairer to the accused. One wonders how they can even make the argument with a straight face.

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