By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
Well, I went home with the waitress
The way I always do
How was I to know
She was with the Russians, too
I was gambling in Havana
I took a little risk
Send lawyers, guns and money
Dad, get me out of this
I’m the innocent bystander
Somehow I got stuck
Between the rock and the hard place
And I’m down on my luck
And I’m down on my luck
And I’m down on my luck
Now I’m hiding in Honduras
I’m a desperate man
Send lawyers, guns and money
The sh*t has hit the fan
Send lawyers, guns and money…
(Warren Zevon – Send Lawyers Guns and Money)
At Guantanamo three days of motion hearings have just concluded in the military commission of the alleged Cole bomber – Mr. Abd Al-Rahim Hussein Muhammad Abdu Al-Nashiri who is facing a potential death penalty. Over at lawfareblog.com a blog of the exchanges of the lawyers for the government and Mr. Al-Nashiri with the military judge has been provided courtesy of Benjamin Wittes. Also over at lawfareblog.com today, they posted further information about a civil suit seeking a declaratory judgment filed by Mr. Nashiri last November against the Military Commission Convening Authority for his orders to try Mr. Al-Nashiri capitally. Along with these gems, there are reports of the Chief Military Prosecutor, and speeches by high-level lawyer types from a recent national security conference at Harvard such as the speech of the current CIA General Counsel.
Reading these events has been riveting because it seems so many strands of what has been happening over the past years of the War on Terror are coming together in a most dramatic manner. I am finding it difficult to clearly express the sense I have of something having been intimated by these events this week. Yet, my muse is certain that plates are moving and shifting if we are attune to looking for them. The care and attention being focused on this process by the powers that be also suggest that something very important is afoot.
As Zevon would say, the sh*t has hit the fan as Mr. Nashiri fights for his life and the US tries to convict him and execute him in this military commission system. In this death struggle, the different strands of the US approach to these detainees are coming together so that they can be seen in a holistic manner – the detention regime, the intelligence gathering regime, and the prosecution regime. All occurring across the political backdrop of a heated up Presidential race.
It is very elaborate what is revealed – yet in its elaborateness I sense that all of the actors know that each has his or her role to play and in playing their roles they will assure that the end that is foreshadowed will be the end foretold.
But (as in the quoted song above), let me ASSERT the role of the bystander (however innocent), somehow stuck, between the rock and the hard place, and no doubt down on my luck. Yes, I am down on my luck. I am down on my luck because the rock of regularly constituted tribunal, the rock of the torture peremptory norm, the rock of the minimum international standard of justice is pushing up against the hard place of U.S. national security imperatives, the hard place of the federal separate powers’ will to crush a foreigner it despises, and the hard place that has called us back to dark nights of the American soul – this time in a rainbow coalition.
But, in being that bystander, I am fortunate that I had the chance to read Judge James Robertson’s opinion denying a stay of the Hamdan military commission back in 2008. Judge James Robertson in dicta raised significant warnings about the Military Commission process. He noted that the “eyes of the world are on Guantánamo Bay” in denying the preliminary injunction. And while all are asked by powers that be to be reassured that the Military Commissions in place now (2009 version) are “new and improved” compared to those Judge James Robertson discussed (2006 version), it is striking that Judge Robertson’s warnings track almost exactly with what are the subjects of these motions.
Yes I am down on my luck. Yes I am down on my luck. Yes I am down on my luck. Would that I had not read Judge Robertson and could watch these developments without his forewarning. But I can not.
Would that I could sit quietly by and watch the wheels spin Mr. Al-Nashiri toward oblivion because he is a foreigner and must obviously be guilty. But I can not.
Would that I could think like former President Bush and those who support these modern commissions that the process that Mr. Al-Nashiri is given is much better than the process that led to all those soldiers being killed and wounded on the Cole so it is good enough. But I can not. No I can not.
Hey stop children, what’s that sound? Everybody look what’s going down.