The government’s new system for trying Guantánamo detainees was thrown into turmoil Monday, when military judges in separate decisions dismissed war crimes charges against two of the detainees.
The rulings, the latest legal setbacks for the government’s effort to bring war crimes charges against detainees, could stall the military’s prosecutions here.
The decisions did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures to declare the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.
Pentagon officials described the rulings as raising technical and semantic issues, and said that they were considering appeals. If appeals failed, they said, they could go through the process of redesignating the detainees.
But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.
The problem they ran into? The Military Commissions Act specifically applies to "unlawful enemy combatants." Bush's Combatant Status Review tribunals? Only classified the Guantanamo detainees as "enemy combatants" - without specifying "lawful" or "unlawful." And while the administration obviously felt that, since the commissions and tribunals were creations entirely of their own imaginations to begin with, specific laws were immaterial, the military judges obviously felt otherwise and dismissed the cases, without prejudice, citing lack of jurisdiction.
The question of military tribunals and commissions was raised in the first place because of the Bush administration's assertion that the US lacked a judicial system equipped for dealing with the "irregular circumstances" of terrorism and conflict such as we've seen in Iraq. ACLU blog Find Habeas points out that that's not necessarily the case:
In February 2003, the Revolutionary Armed Forces of Columbia, known more ominously by the Spanish acronym FARC (a moniker outdone in being scary-sounding only by the Haitian Tonton Macoute), kidnapped three American counter-narcotics contractors, which it then attempted to exchange for prisoners and a chunk of Columbian territory. All three remain captive.
Though FARC’s involvement in the drug trade has traditionally been its claim to infamy, recent administrations have increasingly focused on its use of terrorism (as well as its recruitment of child soldiers). It is currently designated a terrorist organization by both the State Department here and the European Union.
Notably, the parameters of the [senior leader Ricardo] Palmera case look a heck of a lot like the parameters of your mine run al-Qaeda criminal indictment. Most folks are going to be charged with material support, or some other catch-all-esque charge. Most are not going to face conspiracy, attempted murder or murder charges. The government has successfully prosecuted cases where training camp attendance alone constituted “material support” under the statute.
Contrary to [Pentagon deputy general counsel Daniel] Dell’Orto’s talking points, the civilian justice system is well equipped to handle these types of cases, which make up the vast majority of the alleged misconduct of the Gitmo detainees. The FARC trial underscores this point.
At the very least, it's comforting to know that there are judges out there who respect the rule of law, even if our own president won't.
So what's next for our intrepid administration? Plenty. The DoD does plan to appeal the dismissal, but since at this point, a court does not exist to which they can appeal, they'll have to wait for the Pentagon to establish a Court of Military Commission Review, as authorized by Congress. In the meantime, further Combatant Status Review tribunals may be held to re-classify the fourteen "high-value" detainees currently at Guantanamo, among them suspected 9/11 mastermind Khalid Sheikh Mohammed.
My advice to the government (and IANAL)? Just stick with what you know, y'all. They're a little bit trickier and pickier, since provisions would have to be made to keep top-secret information top-secret and prosecutors would have to make efforts to, like, follow the Constitution and stuff, but regular ol' trials within the current justice system are demonstrably suitable for terrorism suspects. They're not as fancy or Tom-Clancy-sexy as military tribunals, but they have the advantage of being constitutionally sound and being a tool with which the government has considerable experience. And trials like these are just too important to screw up.
In other habeas corpus news,
The Senate Judiciary Committee just voted for the Specter/Leahy habeas restoration bill. The committee sent it to the floor with no amendments, no debate and on almost a party line vote (with the GOP sponsor, Senator Arlen Specter from Pennsylvania voting in favor).
The Habeus Corpus Restoration Act of 2007, a bill "to restore habeas corpus for those detained by the United States," is expected to see a floor vote within the month.
Feel free to give your senator a call and encourage him/her to vote for this very important measure. Remember that it's not just foreign nationals who are affected by this bill - under the Military Commissions Act, the next "unlawful combatant" could be you.
The Capital Switchboard:
1 (800) 828 - 0498
1 (800) 459 - 1887
1 (800) 614 - 2803
1 (866) 340 - 9281
1 (866) 338 - 1015
1 (877) 851 - 6437