It's a funny kind of rebellion that results in the continued incarceration of the defendants, an easy but time consuming fix to the jurisdictional objection, and the prospect of being tried a long time from now. Maybe the officers were trying to make a point, as Dahlia suggests, but it may well have been at the expense of the defendants.

The old line is that "The Wheels of Justice grind slow, but they grind exceedingly fine. We have been a new phase of law for about 5 years now. However, the basic principles of the US Consitution and the UCMJ have been the backbone of these military lawyers. I was in JAG for 5 years and I've watched in horror as the basis for all that I hold dear has been virtually torn assunder. There is only so much that men and women who believe in the law will swallow. Yes, I consider this a revolt. These men are saying, enough! Yes, it may take time, but they are concerned just as much with the legacy of law as they are about the outcome. What is done now, will have implications for hundreds of year.

I actually find this to be a very promising development. Finally, we are seeing people in important positions not only realizing that the justice system has been (criminally) subverted, but they are willing to risk their careers to put a stop to it. Neither of these guys can ever expect another military promotion, but that is a small price to pay to start to bring integrity back to the justice system. These guys are the heroes that we have lacked for 6 years.

I also hold Lt Commander Charles Swift, the military lawyer who argued Hamden v. Rumsfeld before SCOTUS, in the highest regard. Of course, he was denied promotion and will have to retire. I hope to God we see him during the next Administration sitting on the bench somewhere or at least as a USA.

A sort of washing their hands of it all?

And, they continue to linger ...

-j

Its hard for me to think of these rebels, if that's what they are, as heroes exactly. Its an awfully cramped form of heroism in some sense. Just as I can't quite get past the fact that Jim Comey practiced what he would say if asked about that hospital room episode for years, but never came forward. Its a form of bravery but . . . . I can't quite shake the sense that the really brave ones are the whistleblowers and the screamers. But maybe I am too idealistic.

Yes, I think you're being too idealistic.  Loud and screaming often accomplishes very little (or even nothing) other than angering others and causing additional roadblocks.  The whistleblowing and screaming in this case might have meant resignation and "speaking out."  What woudl have been the end point of that?  Most likely a great deal of noise and some shuffling to a more carefully handpicked judge who would give the "proper" ruling.  As stands, however, the Guantanamo tribunals have now been set a crippling blow which might actually result in substantial change.  On the whole I will am much more happy with this far less flashy (and far more effective) side path.  Heroism is fine, but results are what matters.

Two points, first the overuse of the word "hero" has reduced it to the point of not being a meaningful word anymore.

second the congress failed their constitutional duties when they allowed bush to go outside of the court system to try these folks.

point to as an example to be copied, then I think these guys qualify. Of course, I happen to believe that John Marshall is a great American hero too. Heck, these guys are much more hero than any sports star. They are out there defending the Constitution at the risk of their own careers and livelihoods. If you are willing to risk your future to do the right things, isn't that what a hero is supposed to do?

What else could these judges have done? These courts are totally the creatures of an ad hoc statute. The judges simply noted (one sua sponte) that the statute authorizing them (the courts) appeared to preclude the proceedings pending against these defendants. Once a court finds it has no subject matter jurisdiction, it can take no action other than to dismiss the proceeding.

I agree that Lithwick is speculating about the judges' motivations. Still, given the long history of command influence on military courts, and given the total control the military has over the Gitmo situation, it's not impossible to imagine military judges who would have found some way to sweep the jurisdictional issue under the bench. These dismissals say something significant about the way the system is working, though what they say may not be as much as Lithwick thinks.

I pronounce the argument between JackD and Dahlia a draw, invoking the classic answer given by lawyers and law professors (I have been both) all the time: "yes and no."

If the jurisdictional impediment was a real one, the judges were bound to "notice" it--but it took moral courage to do so. But if they had swept it under the rug (it seems likely) that the final result would have been quicker to arrive, but not different ini kind.

If, on the other hand, there is not a fix in the offing, because of other political realities, then the jury will please disregard. In that event, the prosecutions will indeed have been torpedoed from within the profession of arms--lawyer-officer branch.

There is an interesting discussion at Balkinazation about the jurisdictional issue. One of the posters asserts that the judges could easily have overcome the issue and taken jurisdiction. I don't pretend to have flyspecked the statute on the point.

Bill, As to the jury disregarding, you have, no doubt, heard it said that you can't unring a bell.

Dahlia,

Thanks for participating. I was working so hard on trying to deal with the new system that I forgot my manners. Author interaction on the threads is most welcome. I, too, am a fan.