Redstate

By James Jay Carafano Posted in War — Comments (1) / Email this page » / Leave a comment »

The U.S. Court of Appeals rejected an effort yesterday by lawyers for Omar Khadr to block his trial by Military Commission here at the detention facility at Guantanamo Bay, Cuba. So it looks like the case will go to the military judges tomorrow morning.

One of the most extraordinary things I have observed so far is the extraordinary efforts made to do things rights. Not only have lawyers had every possible access to challenge the legality of the proceedings in U.S. courts, the military has gone to extraordinary lengths to conduct the proceedings in an appropriate manner including building a state-of-the-art hearing facility on par with the most modern federal court rooms in the United States. Virtually everyone in the courtroom will have access to screens and monitors providing audio and video feeds including simultaneous translation in multiple languages.

There is no shortage of opinions here among the representatives of the non-governmental organizations (NGOs), like Human Rights Watch and the VFW, and the media about the rights and wrongs of Guantanamo Bay. As far as I can tell not very much of it has to do with why we are here—to observe a criminal trial and whether it is done properly. Still since the Military Commission trying Omar Khadr, an enemy combatant captured in Afghanistan, does not start until later, I guess there is not much else to do.

A lot of the discussion around the bar and the dinner table sounds like what Lee Casey and David Rivkin call “lawfare.” It works like this, if you do not like U.S. policies for combating terrorism and you can’t get the U.S. government to change them, change the nature of the debate. Instead of arguing the policies are wrong—argue that they are illegitimate. Casey and Rivkin explain this phenomenon really well and illustrate how attempts are made to use “international law” to undermine U.S. sovereignty in a paper they did for Heritage in 2006, “International Law and the Nation-State at the U.N.: A Guide for U.S. Policymakers.”

Trying to turn policy debates into legal arguments is not healthy for civil society. It takes political decisions out of the hands of the people and their elected representatives and puts them in the hands of lawyers and judges whose job it is to follow the rule-of-law not make laws.

When the trial starts, I hope folks will focus on the right issues—whether U.S. laws are being followed to the letter and not turn the trial into a metaphor for debating American policies in the long war. My guess is I will be sorely disappointed. Reports of the trial next.