Getting It Wrong: The 9/11 Military Commission and the Justiciability of Armed Conflict

MY COMMENT:

This article proves the interoperability of our pathetically confused military justice system, which has become encumbered as much by political expedience as it has been by revolving adjudicators. Big legal and Latin terms aside, the crux is that the unlawful combatant Islamsits who wnat to kill on trial at the US military detention facility at Guantanamo Bay, Cuba, are the true winners of this pre-trial farce.

731 unlawful combatant detainees have been RELEASED, and NONE have been executed, beheaded, blown up, hacked to death, dragged naked and lifeless through the streets, drowned or burned alive. All things our enemies have done to us and/or our allies.

The Military Commissions Act of 2009, a gift of the Obama administration, gives unlawful combatants accused of war crimes virtually the SAME rights as you or I would enjoy in a federal court of law.

Wrong? They haven't gotten it wrong as much as they have never gotten any of it right. Fearing "lawfare" (a planned and practiced enemy technique to lawyer up ASAP after incarceration), then Secretary of Defense, Donald Rumsfeld, put together an all star team of jurists after 9/11/2001 to help determine the rules of the road, so-to-speak. What special accommodations and leniency could they possibly afford these poor fellows caught up (through no fault of their own apparently) in a conflict not of their own doing? None of them were accused of perpetrating the actual acts on 9/11 (all of those perps died doing the deed). No, the captured enemy were accused of material support of terrorism or of conspiracy. But on trial now are only 10 of the "worst of the worst." 731 RELEASED. About 30 who are deemed "too dangerous to release."

Absent from the article is any mention of the Geneva Conventions and barely a word about the Law of War. Why? Because the legal wrangling and confusion have gone off the map so far that no one knows or cares to think about where this all started, really. Not the USS Cole attack, not 9/11, but in modern times the jihad against the West, and in particular the United States, began in violence on November 21, 1979, with the murder of US Marine Corporal Steven Crowley, a native Long Island, New Yorker from my neighborhood. On that date in Islamabd, Pakistan, at the US Embassy there, CPL Crowley was defending the compound from agitated and armed "students" who were bused to the embassy unabated by Pakistani police or military.

CPL Crowley's post was on the roof of the embassy, where he took a bullet to the skull which did not immediately kill him. He was evacuated into the safe room on the second floor, where a US nurse administered first aid and oxygen.

CPL Crowley's threadbare life was cut short when, during the siege of the embassy, the oxygen ran out and then he expired, whilst Islamist "students" attempted to burn those hiding in the safe room to a crisp from below.

Finally, Pakistani authorities arrived and herded the "students" back onto the buses and then they left, leaving CPL Crowley lifeless.

The "students" were agitated by a fake news story that said US forces had occupied the mosque at Mecca, Saudi Arabia. In fact a radical Islamist group had taken control of the mosque, and French and US forces were assisting the Saudi's in liberating the holiest of Muslim sites.

This was the first shot in the current Global War on Terror. My mobilization orders confirmed this, stating I was being activated: "In support of the Global War on Terror."

As for the legal flim-flam, all anyone needed to do was look to the six of eight German saboteurs executed in 1942 for spying in the United States. They landed dry-foot on Long Island and Florida with the means and intent to kill people and destroy property. The electric chair was used about eight weeks after their capture. They were denied habeas corpus, and then tried by military commission (without special rules or categories).

The interesting part about all of it is that they didn't hurt a fly or harm a brick. They carried out no violence against man nor building, yet were punished according to the Laws of War and the Geneva Conventions. Death was the punishment.

All of the detainees who have been or are at Gitmo are at least unlawful combatants, and therefore not entitled to the protections of Geneva or Law of War. Some say they are entitled to habeas corpus, I would say on what grounds?

The courts have said they may petition for habeas corpus on the grounds that Gitmo is "defacto US soil." Not true in the least. Gitmo is Cuban soil, won by the US with blood, sweat and tears in the Spanish-American War and then bequeathed to the people of Cuba. Gitmo is a leased property, not US soil.

If the rules had been followed from the beginning, many of those who have been kept at Gitmo for so long would have been executed, and rightly so. Many of the 731 released detainees may also have suffered the same fate, and rightly so.

Instead, we have rules and rules for rules that have rules and more rules. Enough!

Reinstate the very basic laws of war as they pertain to irregular combatants caught on the battlefield and be done with this. Are we to deter further incursions and terror upon our military and civilians, or are we to encourage lawfare every time they kill us and then get captured?

The Law of War states we may hold even lawful combatant Prisoners of War without charge or trial, "until the end of hostilities."

Last time I checked, we still had troops in the Middle East taking incoming, and various terror attacks continue globally. And yes, we are still in a Global War on Terror.

And until all Islamists are dead or no longer have the means or will to kill us we must defend ourselves by all means necessary.