A ridiculous end to a ridiculous "trial"

[Der_Trihs]

@Uzi

Then why hasn’t he renounced his Canadian citizenship rather than trying to rely on it to get him off or a lighter sentence?

Because he’s trying to get away from a bunch of brutal, sadistic thugs? That only requires fear of American brutality, not any love for Canada.

[Uzi]

@Der_Trihs

That only requires fear of American brutality, not any love for Canada.

Well, in that case, you keep him.

[KarlGauss]

Hey, does anybody know if his lawyers worked pro bono at all? If so, maybe we can get this thread up to 20 pages! In any case, please carry on.

[Euphonious_Polemic]

@Uzi

I’ve quoted the relevant law up thread. How doesn’t it apply and why? He is a Canadian and he aided our enemies in addition to directly attacking our allies. Seems to fit the law to a T.

Because as I said, there would be little public appetite for prosecuting someone for High Treason who was brainwashed by his family, moved by his family to Afghanistan at age 10, and captured there at age 15. It would make us look like a bunch of sad, pathetic fucks, blinded by rage and unable to see that a 10 year old does not have full control over his life and where he is sent by his hate-mongering father.

I would have had no problem charging his father with this crime - perhaps we could dig him up and put his decaying body on trial to appease you.

[elucidator]

And give him a stiff sentence!

[Mince]

@elucidator

And give him a stiff sentence!

Life!

[Hamlet]

@elucidator

And, of course, there is the little matter of the evidential testimony that seems to have wandered away and gotten lost. Well, darn! Kind of a shame about that, the defense might have found that useful, but everybody knows he’s guilty, why obscure the issue?

This is simply false. The OC-1 report was given to defense team with the rest of discovery.

[Bricker]

@Snowboarder_Bo

So, to be clear, are you arguing that a law passed 7 years after the alleged actions took place should be held to have sway over this defendant, that he fits within its reach in some way?

Or some other argument I’m still missing?

No, you got it. The 2009 law is applicable to the 2002 act of the accused.

[Bricker]

@Lemur866

And that’s exactly what happened in this case. He was tortured, using methods familiar to anyone who has read The Gulag Archipelago.

How do you know this?

[CarnalK]

@Bricker

No, you got it. The 2009 law is applicable to the 2002 act of the accused.

So how does that get around Ex post facto?

[Bricker]

@elucidator

And the big target here? His confession is not reliable as evidence. There is no physical evidence, the testimonial evidence is, at best, contradictory, and his confession may well have been influenced, if not outright suborned.

How about the video tape?

[Bricker]

@Kobal2

Nope. This is called an ex post facto law (or retroactive law) and its frowned upon for obvious reasons, especially in criminal matters. In fact, many countries explicitly frorbid them in their Constitutions (including the US, Article 1 Section 9), with sometimes an exception for ex post factos that or more lenient than the original.

No, it’s not.

An ex post facto law is one that purports to criminalize an act that was innocent before the law was enacted; to aggravate a crime; define it as worse than it was before the law was enacted; increase the criminal penalties associated with an act that occurred before the law was passed; or changes the rules of evidence by allowing a conviction on less evidence than was necessary when the act was committed. See Calder v. Bull, 3 U.S. 386 (1798).

[CarnalK]

@Bricker

No, it’s not.

An ex post facto law is one that purports to criminalize an act that was innocent before the law was enacted; to aggravate a crime; define it as worse than it was before the law was enacted; increase the criminal penalties associated with an act that occurred before the law was passed; or changes the rules of evidence by allowing a conviction on less evidence than was necessary when the act was committed. See Calder v. Bull, 3 U.S. 386 (1798).

Well, Kadhr was tried for conspiracy and Human Rights First lawyer Joanne Mariner notes :

The MCA states that it does not create any new crimes, but simply codifies offenses “that have traditionally been triable by military commissions.” This provision is meant to convince the courts that there are no ex post facto problems with the offenses that the bill lists. In Hamdan v. Rumsfeld, however, a plurality of the Supreme Court (four justices) found that conspiracy—one of the offenses enumerated in the MCA—was not a crime triable by military commission. The bill’s statement that conspiracy is a traditional war crime, does not, by legislative fiat, make it so.

[Hamlet]

@CarnalK

Well, Kadhr was tried for conspiracy and Human Rights First lawyer Joanne Mariner notes :

He wasn’t tried, he pled guilty. He pled guilty not just to conspiracy, but also murder as a belligerant, attempted murder as a belligerant, providing material support to terrorism by joining Al Qaeda and creating and planting IEDs, and spying.

[CarnalK]

@Hamlet

He wasn’t tried, he pled guilty. He pled guilty not just to conspiracy, but also murder as a belligerant, attempted murder as a belligerant, providing material support to terrorism by joining Al Qaeda and creating and planting IEDs, and spying.

You got me, he was charged with conspiracy. Doesn’t really change the thrust of my post, so I don’t get your point on listing the other charges. I already understand what he was doing over in Afghanistan.

[Kobal2]

@Bricker

No, it’s not.

An ex post facto law is one that purports to criminalize an act that was innocent before the law was enacted; to aggravate a crime; define it as worse than it was before the law was enacted; increase the criminal penalties associated with an act that occurred before the law was passed; or changes the rules of evidence by allowing a conviction on less evidence than was necessary when the act was committed. See Calder v. Bull, 3 U.S. 386 (1798).

Precisely. How were partisans/resistants/irregulars defined before that 2009 act, and what punishment were they subject to ? If that act somehow bumps that kid from one category to another, or worsens the crimes that can be pinned on him, or makes his sentence heavier, then it is an ex post facto law. If not on paper, at least in effect and spirit.

[Bricker]

@Kobal2

Precisely. How were partisans/resistants/irregulars defined before that 2009 act, and what punishment were they subject to ?

Prior to that, they were defined by the Bush-era “unlawful combatant” designation and the earlier military tribunal system, which was worse for them.

If that act somehow bumps that kid from one category to another, or worsens the crimes that can be pinned on him,

…it doesn’t.

or makes his sentence heavier,

It doesn’t.

then it is an ex post facto law. If not on paper, at least in effect and spirit.

It’s not.

[Bricker]

@CarnalK

Well, Kadhr was tried for conspiracy and Human Rights First lawyer Joanne Mariner notes :

SDMB lawyer Bricker notes that when only four justices deliver the court’s opinion:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .”

Marks v. United States, 430 US 188 (1977), quoting Gregg v. Georgia, 428 US 153, 169 n. 15 (1976). Needless to say, the reasoning that conspiracy is not a traditional war crime is not the “narrowest ground” upon which Hamdan v. Rumsfeld rested.

SDMB lawyer Bricker also notes that a guilty plea waives all non-jurisdictional defenses and claims of defect.

[CarnalK]

Well, forgive me for taking the opinion of a working lawyer who specializes in the field over yours.

[Hamlet]

@CarnalK

You got me, he was charged with conspiracy. Doesn’t really change the thrust of my post, so I don’t get your point on listing the other charges. I already understand what he was doing over in Afghanistan.

My only point was that, even if you get rid of the conspiracy count (which won’t happen because it won’t be appealled), it won’t change a thing.