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At Gitmo, It All Hinges On A Word
If Military Tribunals Can Only Try 'Unlawful' Enemy Combatants, They May Have No Authority Over Guantanamo Detainees.
What's in a word?
When the word is "unlawful," quite a lot.
Earlier this week, in another major setback for the Bush administration's beleaguered military commissions, military judges in two trials declared that they lacked jurisdiction to try terror suspects detained at Guantanamo Bay.
Their holdings hinge on an apparent technicality. When Congress passed the Military Commissions Act of 2006, it only gave the commissions jurisdiction over "alien unlawful enemy combatants." The two suspected Al Qaeda members whose cases were at issue this week, Omar Khadr and Salim Ahmed Hamdan, had previously gone before Guantanamo's Combatant Status Review Tribunals, but those tribunals had merely determined that they were "enemy combatants," not "unlawful" enemy combatants. As a result, declared Army Col. Peter E. Brownback III and Navy Capt. Keith Allred, the military commissions lacked jurisdiction over them.
This may seem nitpicky, but it's not. Behind the rulings lies a major dispute about the status of the Guantanamo detainees.
In 2001, the administration made a fateful decision to treat terrorism suspects as "enemy combatants" in the "war on terror" rather than trying them as criminals in civilian courts. This decision led to the current military commission meltdown. Here's how.
Generally speaking, it is illegal for ordinary people to kill other ordinary people. But the laws of war recognize that during an armed conflict, combatants on one side are supposed to try to kill combatants on the other side. If they are later captured, the opposing forces can detain them until the end of hostilities but can't try them for murder. They have "combatant immunity": If they killed opposing combatants, they were just doing their job.
What, then, is an "unlawful enemy combatant"? The Bush administration has long been fond of tossing around the phrase, but until the 2006 military commissions law, it had zero legal meaning.
The phrase arises out of the inappropriate conflation of two very different law-of-war concepts.
The first relates to the circumstances under which combatants can lose their combatant immunity. If a combatant kills an innocent civilian, for instance, it's a war crime, for which he can be tried. Loosely speaking, the phrase "unlawful enemy combatants" could refer to combatants who lose immunity by committing such crimes.
But the administration conflated this with a different law-of-war concept, that of unprivileged belligerency. Under the Geneva Convention, combatants who fail to follow certain rules — such as those requiring the wearing of uniforms — are not entitled to be treated as prisoners of war if captured, a point the Bush administration has used to justify it's decision not to grant POW status to detainees. But not wearing a uniform isn't necessarily a crime under the laws of war — if it were, many members of the U.S. Special Forces, who often operate out of uniform, would technically be war criminals, along with civilians who take up arms against an invading army.
So let's come back to the Guantanamo detainees. In 2004, the administration created Combatant Status Review Tribunals in an overdue — and still flawed — effort to figure out whether the hundreds of detainees had been rightly detained in the first place. The tribunals identified some detainees who simply weren't enemy combatants, just people in the wrong place at the wrong time. Most of those detainees have been released. The remaining detainees were designated "enemy combatants" and will — in theory — face eventual trial before a military commission.
That's where we come to the heart of the problem, the issue that led the two judges to toss out the cases against Khadr and Hamdan. Congress only gave the commissions jurisdiction over "unlawful enemy combatants." But the detainees have never been determined to have done anything that made their combatancy "unlawful," and, as Judge Allred noted, the definition of "enemy combatant" used by the earlier review tribunals was broad enough to potentially even include civilians not actively involved in hostilities. As a result, the judges concluded that they lacked jurisdiction to try the detainees.
Reading between the lines, it appears that the judges thought that the Bush administration wanted to have its cake and eat it too: declare all terror suspects "enemy combatants" in a "war on terror" and also try them for actions such as seeking to kill U.S. troops in that war. But you can't have it both ways; under the laws of war, if Al Qaeda suspects are combatants, it's not unlawful for them to kill U.S. troops.
The real irony? While the military commissions have floundered, civilian courts have convicted numerous high-profile terror suspects. If the administration hadn't been so fixated on declaring "war" on terror, many of the suspected terrorists at Guantanamo might have been convicted long ago.
© 2007 The Los Angeles Times
11 Comments so far
Show AllAn excellent article.
But Guantanamo is the name of the bay in Cuba we continue to occupy. Please don't dishonor the Cuban people by calling it "Gitmo."
"Generally speaking, it is illegal for ordinary people to kill other ordinary people. But the laws of war recognize that during an armed conflict, combatants on one side are supposed to try to kill combatants on the other side. If they are later captured, the opposing forces can detain them until the end of hostilities but can't try them for murder. They have "combatant immunity": If they killed opposing combatants, they were just doing their job."
What a disgusting "job" that is; murder is murder is murder, and all killing everywhere should be made illegal; should be recognized as fundamentally wrong.
http://www.dreamingearth.net
Is it just possible some as yet unrevealed wily Democrat knew exactly what he/she was doing when they wrote "unlawful enemy combatant?" Said Dem would have had to actually have read the bill, of course, which is a stretch, but assuming he/she did, then saw an opportunity and decided to roll the dice to see if the Idiots In Charge would catch it.
Whoever that Dem was, thanks.
Hide the witnesses in GuanoHole:
http://www.projectcensored.org/publications/2004/11.html
Yes, excellent article. Thanks for clearing this up for me. (I don't like the use of the word Gitmo either--too much like saying the Japs, or the Chinks...)
"The real irony? . . . If the administration hadn't been so fixated on declaring 'war' on terror, many of the suspected terrorists at Guantanamo might have been convicted long ago."
Is it ironic or is it the intended goal? The REAL question: If the administration had classified these prisoners in such a way that would allow them to be tried, how many of them would actually be convicted? Maybe this gulag is fulfilling its purpose just fine. Actual goals vs. stated goals. (See: War On Drugs, War On Poverty)
"Gitmo" is just milspeak for "GTMO", a typical military acronym.
I say we avoid the use of its beautiful original name so it won't be further stained by the shameful events that have occured there.
The treaty that the British forced on China only gave them Hong Kong for 100 years. Our 1898 treaty with Cuba gave the U.S. soveriengty over GTMO "in perpetuity". Both Governments must agree before the Navy will hand it back to the Cubans.
Castro foolishly cashed the first rent check his government received from Washington (but none thereafter). That was enough for the U.S. to claim that the treaty was "recognized" by the new socialist government.
Like Hong Kong, GTMO was always a wonderful hurricane-proof harbor, but it's too shallow for today's warships. It's a useful airbase I suppose, but in a war with - say - Venezuela, Cuban artillery would put any aircraft on the runway in immediate danger.
The place is useless - We should have departed years ago, when the Russians left.
-----------------------
Enemy Combatant
Enemy of the State
Political Enemy
... who decides?
It scares me not just that Khadr was locked up already for 5 years but also that he was only 15 when he was supposed to have committed this act. I know Bush etc are happy to execute children (preferably educationally backward ones) but really, who really knows what they are doing when they are 15?
The administration of Bu$h the inferior is openly torturing and detaining people without charge with our tax dollars in our name.
What we call the place it is done seems a very minor point.
These trial's are a farce to begin with! I don't think the government has enough on these people to try them in a normal court of law! Which is why they are choosing to control the trial's by military court! I would almost bet money if they tried to try them in a civil court the cases would be thrown out and they would wind up with egg all over their faces. The evidence is so thin to be transparent. Most of the men have been used for propaganda purposes. To promote Bush's war on terror!
iolellity says:
"What a disgusting 'job' that is; murder is murder is murder, and all killing everywhere should be made illegal; should be recognized as fundamentally wrong."
Does this mean you are in favour of the murderous US military's use of a kangaroo court to convict Omar Khadr and other "enemy combatants" of murder?
It's easy to be pious and say "all killing is murder" but how would you react in a real war situation? In Khadr's case, for example, he was 15 years old. He was the sole survivor of a vicious aerial and ground assault in Afghanistan, in which he was blinded in one eye. Despite his terrible injury, he threw a grenade at the foreign invaders - the US soldiers who, he reasonably assumed, were coming to finish him off. For this he was captured, tortured and sent to spend the next five years of his life at Guantanamo Bay, without access to legal counsel and without any charges laid against him.
It's nothing more than victors' "justice".