Guantánamo Trials in Chaos After Judge Throws Out Two Cases
WASHINGTON - The Bush administration’s plans to bring detainees at Guantánamo Bay to trial were thrown into chaos yesterday when military judges threw out all charges against a detainee held there since he was 15 and dismissed charges against another detainee who chauffeured Osama bin Laden.
In back-to-back arraignments for the Canadian Omar Khadr and Salim Ahmed Hamdan, a Yemeni national, the US military’s cases against the alleged al-Qaida figures were dismissed because, the judges said, the government had failed to establish jurisdiction.
Yesterday’s decision by Colonel Peter Brownback to dismiss all charges against Mr Khadr on technical grounds has broad implications for the Bush administration’s system of military tribunals because the technicality appears to apply to all 385 prisoners held at Guantánamo.
The dismissal of the case also undermines the administration’s efforts to show that the military tribunals are based on sound legal practice and can provide detainees with a fair hearing, detainee lawyers said.
In his decision yesterday, Col Brownback said the Pentagon had merely designated Mr Khadr, a Canadian citizen facing charges of murder and terrorism, as an “enemy combatant”, not an “unlawful enemy combatant”, the term used by Congress last year in authorising the tribunals.
The Pentagon’s lapse meant the tribunal did not have proper jurisdiction to try Mr Khadr. “A person has a right to be tried only by a court that has jurisdiction over him,” Col Brownback told the court.
Mr Hamdan is accused of being Bin Laden’s chauffeur and bodyguard. In his case, US Navy captain Keith Allred yesterday said Mr Hamdan is “not subject to this commission” under legislation passed by Congress and signed by President George Bush last year.
The new Military Commissions Act, written to establish military trials after the US supreme court last year rejected the previous system, is full of problems, defence attorneys argued.
Mr Hamdan last year won a US supreme court challenge that led to the scrapping of the first Guantánamo tribunal system.
Yesterday’s rulings also suggest that none of the 385 other detainees at Guantánamo, held for more than five years without charge, can be brought to trial before the tribunals because they too have been designated merely as “enemy combatants”, lawyers said yesterday.
“The system right now should just stop,” Marine Corps Colonel Dwight Sullivan, the lead military defence lawyer, said. “The commission is an experiment that failed and we don’t need any more evidence that it is a failure.”
Mr Khadr’s defence team was equally scathing. “This is a shambles,” said Kristine Huskey, who had been on Mr Khadr’s defence team until last week when he sacked all of his American lawyers. “It’s another example of how everything has been so ad hoc. The Military Commissions Act was just not done thoughtfully.” Yesterday’s ruling does not bring Mr Khadr any closer to freedom. Col Brownback threw out the charges “without prejudice”, which means the Pentagon could issue new charges against him.
However, it exposes the hastiness with which Congress moved in October to bring in legislation authorising the tribunals after the supreme court threw out the earlier version.
Now, once again barely a year later, the tribunals have been thrown into legal limbo at their first outing. In April, the first Guantánamo detainee to be charged, David Hicks, reached a plea bargain deal, thus avoiding trial.
Ms Huskey said that amid the confusion, one thing appeared clear. The detainees, held without charge since 2002, were likely to face further delays before having their day in court. “What it does mean for Omar and all the detainees is that they are going to have a whole new process so that everyone can be charged,” she said.
Guardian Unlimited © Guardian News and Media Limited 2007
George hasn’t said it yet but I’ll bet we will yet hear him repeat Nixon’s line: “If the President does it that means it is not illegal.”
How often in the past has the US looked upon the justice systems of other nations as nothing more than kangaroo courts? Hypocrisy reigns supreme in this country that proclaims the moral high ground, yet jails 2.2 million (25% of world’s prison population) of its own citizens (5% of worlds population). This country that ignores international treaties and conventions and declares a group of prisoners of war (yes, “war” since it insists on continuing the sham of using the term “war on terror”) as “unlawful enemy combatants” yet it depends on “private security contractors” to do much of its dirty work in Iraq and elsewhere. These private security contractors are not subject to US, Iraqi or int’l law or oversight, so aren’t they rather “unlawful”??
If the US wants to reclaim any dignity, honor or respect, it should immediately close down Guantanamo, get the hell out of Iraq, kick Bush, Cheney and all their cronies out of office, and start cooperating with the int’l community to make life on this rock we call earth more peaceful for all.
“The dismissal of the case also undermines the administration’s efforts to show that the military tribunals are based on sound legal practice and can provide detainees with a fair hearing”
Yes, that says it all. This was only a game, a propaganda ploy designed by the Administration to show just how “fair” the military tribunals are, and nothing more. The detainees are still in Gitmo Hell, they will all be charged again, and they will all get BU$H justice. The rules and foundations of these military tribunals are farce and unconstitutional–but nice try Mr BU$H.
Free the container massacre witnesses now!
A great VICTORY for the Bush cabal, which will now be able to keep these folks in Gitmo forever–without any legal recourse of any kind.
Excuse me? What do you mean by “A great VICTORY for the Bush cabal, which will now be able to keep these folks in Gitmo forever–without any legal recourse of any kind.”? I don’t see it from what I have just read.
From what I see, this might mean that W, thanks to his OWN foolishness, has just signed the release papers for the whole lot of them. I LOVE that part of it. What this ruling says is that you can’t just go around kidnapping people and declaring them as your enemy.
Please, explain how this is a victory for W at all.
Well Khadr still isn’t leaving Gitmo despite having the charges dropped, that’s the victory for the Administration. They can keep people there even after charges have been dropped. Since when do they respond to scathing criticism and people asking for things to stop? They’ll just ignore this like they ignore everything else.
How hard can it be to write a law that allows the military to put on secret trials without screwing it up?
Can anyone think of any occasion in history where secret prisons and torture proved necessary to preserve the freedom of a democratic nation?
I can’t.
But history can cite many examples where imprisonment and torture was deemed necessary to subjugate an empire.
When will our “patriotic” neighbors understand this?
I’m hearing James Dickey from the movie “Deliverance” talking to us all. Only this time he is referring to our careless, dangerous habit of allowing the dregs of society occupy the halls of power. He speaks in a gentle tone but the people he addresses hear the implied threat: “Don’t do this again”
We can’t forget how this administration operates. Bush will never allow those 385 “enemy combatants” to escape their fate on a mere technicality. I suspect that Bush and Chaney will find a creative way to remove lawful decision makers like Brownback and replace them with fascists who do not believe in civil liberties.
In the words of Bob Dylan “Couldn’t help but make me feel ashamed to live in a land
Where justice is a game.” I am certainly pleased I am not American
GW Bush and his administration should be on trial for crimes against humanity..
What was a War Crime in 1945 is now American Foreign Policy
hey macchendra, I always enjoy your pithy, insightful posts but this time you have me mystified.
Please decode for the unenlightened: what means “free the container massacre witnesses now”?
thanks
Don’t hold your breath waiting for the release or legitimate trial of these Gitmo detainees. Either of those eventualities will be a political negative for Bu$h the inferior. He intends to leave this and the war as a political land mine for his successor.
Of course, the budget deficit and the economy are also ripe for a major explosion in the next President’s lap.
The container massacre was an event witnessed by most of the people emerging from Guantanamo who have been heard from and are at liberty to speak.
http://www.google.com/search?source=ig&hl=en&q=container+massacre+witnesses&btnG=Google+Search
Not sure which is more frightening, Gitmo or the picture of Zaynab Khadr. All she needs now is a resperator and a light saber.
I always have had the feeling that something wasn’t right about Gitmo! Maybe it’s the way Bush the Criminal went about creating a system much like Russian Gulag’s that people disappear in for years. Maybe it’s the way he has always thumbed his nose at the Constitution and everything we have always stood for. Set himself up as lord and master over all! But, I always wondered how many of these detainee’s were really terrorist’s and how many were victims who were in the wrong place at the wrong time and provided good propaganda fodder for Bush the Criminal?
Back when I was in the 2nd Infantry Division band stationed in South Korea, the adage was “Military justice is to justice what military bands are to real music.”
Setting such cynicism aside for a moment, this week’s surprise rulings from Judge Brownback dismissing the Military Commission proceedings against Khadr and Hamdan should be recognized as one of JAG’s finer moments. Let’s give credit where credit is due.
Apparently, what happened is basically this:
After receiving secret legal advise from White House counsel Alberto Gonzales, Prof. John Loo and others in the winter of 2001, in February 2002 George Bush personally issued a secret written Presidential Order denominating the Taliban and al Queda fighters taken captive by US forces in Afghanistan “enemy combatants” rather than “prisoners of war.”
This was done specifically to exempt all the detainees swept up into US military custody from the POW and anti-torture protections of the Geneva Conventions. The creation of this illusory “enemy combatant” classification out of thin air by the White House met with the uniform worldwide condemnation from every legal scholar having any working knowledge of the history and text of the Geneva and Anti-Torture treaties that had been formally ratified (and initially drafted in significant measure) by the US government in the aftermath of World War II.
Four years passed. Gitmo filled up. The torture interrogation techniques mysteriously migrated from Guantanamo to the Iraq occupation theatre of operations after the 2003 US invasion. The Abu Ghraib scandal brought much of this secret history out into the open, including the rendition gulag and Donald Rumsfeld’s personal role in redefining waterboarding, mock executions, use of electroshock, and so forth no longer constituting “torture” under the Bush administration’s new standards.
Immediately before Congress was set to recess for the fall 2006 House and Senate campaigns, George Bush and the GOP leadership forced through votes adopting the Military Commissions Act, a piece of shameful, craven legislation rivaled only by such earlier statutory atrocities as the Patriot Act, the Smith Act, the Fugitive Slave Act, and the Alien & Sedition Acts. A majority of the pre-election House and Senate voted to abolish federal judicial review of detainees’ confinement and conditions of confinement by means of the writ of habeas corpus.
The Commissions Act, which George Bush gleefully signed into law with a great rhetorical flourish right before the last national election, expressly grants retroactive and prospective immunity from legal accountability to all those who have or will engage in what the rest of the civilized world recognizes as torture.
The new post-election Democratic Congressional leadership, for reasons mysterious to many observers, continues to simply hold John McCain’s coat on the whole torture question, leaving the Military Commissions Act intact. But then like a bolt out of the blue, comes Judge Brownback’s recent ruling from Guantanamo Bay.
It appears that when Congress passed the Commissions Act, jurisdiction to try detainees by military commission applied to “unlawful enemy combatants”, not “enemy combatants.” Applying traditional rules of statutory construction, the Pentagon’s own Judge ruled that the term “unlawful” was not simple surplusage or clerical oversight, but rather was language of genuine limitation, creating a distinction that made a real world difference.
If 15 year old Khadr found himself caught up in a firefight between uniformed US Marines and mujadahin forces who don’t generally wear uniforms or identifying insignia while waging what is today called asymetrical warfare, if Khadr throws a grenade at the uniformed troops on the battlefield how is this act “unlawful” according to the laws of war? If the case against Hamdan is that he used to be Osama bin Laden’s chauffer, how does that make driving the vehicle either “unlawful” or an act “combat” at all?
What Judge Brownback’s interpretation of the Military Commissions Act’s precise language achieves is more than just creation of a “technicality”, in my opinion. The ruling focuses attention right back where it belongs - on the initial underlying conceptual absurdity of George Bush’s legalistic hocus pocus, which sought to conjure up a framework in which uniformed coalition troops were soldiers subject to the Geneva Conventions, but their guerilla force battlefield adversaries are to be labeled “enemy combatants” falling outside Geneva’s POW protections. The ruling essentially puts the Geneva standard right back into meaningful operation: Gitmo detainees can only be prosecuted for war crimes, ie., “unlawful” acts undertaken in a combat situation.
To be sure, the powers-that-be in the Pentagon and White House are gathering their strength and will predictably come down hard on Colonel Brownback’s decision. But savor the moment while we may.
An American Judge - a military Judge even - has stood up for the rule of law.
Here’s my salute. Strike up the band. And tell Congress to wake up and join the parade.
Bill from Saginaw
Maybe we have a judge who see’s thing for what they are. Just a bunch of kidanp victims held illegally.
It doesn’t matter what this judge says. They’ll simply re-classify these prisoners to fit their diabolical plans just like they re-wrote the definition of torture in the Military Commissions Act. This is just a minor glitch which will soon be rectified, sad to say.