On July 4, we were reminded of the US Declaration of Independence, which speaks of an oppressive British monarch who “affected to render the Military independent of and superior to the Civil Power”, imposing “a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his assent to acts of pretended legislation”; and “transporting us beyond Seas to be tried for pretended offences”.
In the 2006 Hamdan decision, the Supreme Court reiterated that “conspiracy” was not a valid crime under the Geneva Conventions or the laws of war, whatever the Bush administration might claim.
Congress proceeded to make it a crime anyway, and it was used (unsuccessfully) against Hamdan himself.
In 2009, top Obama administration lawyers from the departments of Justice and Defence admitted to Congress that “material support for terrorism”, invented by Congress in the Military Commissions Act 2006, was not a valid war crime and asked that it be dropped from the MCA 2009.
Both “crimes” are currently before the Court of Military Commissions Review in the cases of Hamdan and Al-Bahlul (bin Ladin’s driver, and publicity man, respectively), and it is entirely possible they will be struck out on appeal.
Al Qosi becomes the second person, after David Hicks, to plead guilty to a non-existent, retrospectively applied, military commission offence.
His Sudanese and American lawyers may feel satisfied that they have brought some sort of resolution to their client’s nightmare, but every plea, and every conviction, is a knife in the US Constitution, the Geneva Conventions and the rule of law.
A military commission staged by Col Gaddafi would have had as much validity.
See previous Fitch on Material support