Colonel Peter Brownback III, a military judge , dealt a serious blow to Guantánamo—and by extension, the "global war on terrorism legal system"—this week. He ruled that because the military had failed to classify two men as "unlawful" enemy combatants, as required by the Military Commissions Act passed last year by Congress, he did not have jurisdiction over their cases.
The procedural flaws that Colonel Brownback discovered point to much larger defects in the Bush administrations' whole legal architecture. Omar Khadr and Salim Ahmed Hamdan are the only two detainees at Guantánamo (out of about 380 men currently detained) who were facing trial by the military tribunal when Brownback ruled in the cases. Administration officials must now appeal the decision and seek to reclassify the two men in order to reopen the case. "This is just a semantic decision, is the way we are viewing it," an unnamed official told The New York Times .
While they are doing that, a spotlight is on "justice" at Guantánamo. Marine Colonel Dwight Sullivan, the lead military defense lawyer for prisoners there, told the Times that the decision has broad impact; "How much more evidence do we need that the military commission process doesn't work?" Counter-terrorism law expert Michael Greenberg, who teaches at University of Maryland, notes, Brownback's rulings are a "tug on the yarn of a sweater that's going to unravel completely."
Omar Khadr is one of the few imprisoned at Guantánamo who was clearly captured on the battlefield. During a July 2002 battle near Khost in Afghanistan, Khadr reportedly threw a grenade killing Green Beret sergeant, Christopher Speer and wounding Sergeant Layne Morris. Khadr—a Canadian citizen—was fifteen when he was transferred to Guantánamo. Although he is thought to be the youngest detainee at the U.S. detention camp, he is not the only teenager there.
Salim Ahmed Hamdan is Yemeni. He admitted to being a driver and bodyguard for Osama bin Laden, but that confession could have been extracted through torture and coercion. He took his case all the way to the Supreme Court, which declared that the military commissions under which he was to be tried were unlawful. The Bush administration then created-and Congress approved-the Military Commissions Act.
Editorial columns throughout the country are renewing and strengthening calls for the shuttering of Guantánamo prison. The House of Representatives has passed a measure directing the Secretary of Defense to draw up a plan to clear out the prison. Secretary if Defense Robert Gates, Secretary of State Condoleezza Rice and President Bush have all said—at different times, varying volumes and fluctuating intensity—that Guantánamo should be shut down. But, some within the administration stand fast in the face of widespread condemnation of torture and indefinite detention.
John Bellinger, a legal adviser to Secretary of State Condoleezza Rice, defends continuing to hold Omar Khadr-even if he were found not guilty:
as a matter of law, we believe we may continue to hold someone even after they are acquittedÃ¢â‚¬Â¦. Because they are combatants and they would return to acts of combat and we think ... we can hold them until the end of that conflict.
That position was echoed by Daniel Dell'Orto, a top Pentagon lawyer, who recently testified before the Senate Armed Services Committee. "Detention of enemy combatants in wartime is not criminal punishment and therefore does not require that the individual be charged or tried in a court of law."
Detention is not punishment? Tell that to men who have lost five years of their life in a cage and are subjected to torture-which the administration calls "enhanced interrogation techniques."
And, what is wartime? When does it end? In 2001 Vice President Dick Cheney warned that the war would last a lifetime. The administration used to call it "the long war." We have been told it is a generational struggled akin to the Cold War.
What does it mean to hold men without trial for the duration of the war? It means a life sentence for many never charged or tried. And, it means a death sentence for a growing number of men. On June 10, 2006, three men hanged themselves at Guantánamo-one, Yasser Talal Al Zahrani, was 17 when he was detained.
Nearly a year later, on May 30th, Abdul Rahman Ma-ath Thafir Al-Amri died in what U.S. military officials are characterizing as a suicide. Although characterized by the Pentagon as a jihadist, Al-Amri served in the Saudi army for nine years, where he received training from the U.S. military. Not much is known about the charged leveled against him, but he has regularly starved himself to protest his detention and treatment. At one point, he weighed less than 90 pounds.
Clive Stafford Smith, a lawyer for a number of prisoners at Guantánamo, "we can guarantee there will be more deaths" if the prison remains open. Amnesty International estimates that 200 men at Guantánamo have staged hunger strikes since the camp opened and 40 have attempted suicide (some repeatedly).
During the June 3rd debate, Senator John Edwards was the only "top tier" Democratic candidate to criticize Guantánamo, joining Arizona Governor Bill Richardson in a pointed critique. Richardson:
We should shut down—I would, first day as president, I would shut down Guantánamo. I would shut down Abu Ghraib ... and secret prisons.
For his part, Edwards listed some of the Bush administration's actions that have degraded U.S. security, including "the ongoing war in Iraq, Guantánamo, Abu Ghraib, spying on Americans, torture" and concluded: "none of these things are okay. They are not the United States of America."
Maybe other Democratic candidates agree with Republican candidate Mitt Romney, who condoned "enhanced interrogation techniques" at the May 15th GOP debate in South Carolina. Romney wants to see facilities at Guantánamo doubled and applauded the fact that prisoners "have no access to lawyers they get here." The Columbia, South Carolina debate took place just three and half hours from the rural airstrip in North Carolina where CIA rendition flights take off.
Mitt and the others need to listen to people like Rear Admiral John Hutson (ret.), who told an April 24th Senate panel that "the way we have dealt with detainees risks blemishing the reputation of this great country for generations to come." And he is not just talking about a few little topical spots. Retired Generals Charles C. Krulak and Joseph P. Hoar elaborate on the kind of blemishes the U.S. is in danger of receiving. In a recent Washington Post op-ed , they warn that
torture methods ... have nurtured the recuperative power of the enemy ... if we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy.
Joseph Margulies, a professor at Northwestern Law School, wrote in a Los Angeles Times op-ed that Guantánamo "breeds terror," and is a "fetid and cancerous symbol of hubris and hegemony."
The chorus of voices against Guantánamo mounts across the political spectrum. A December 2006 Intelligence Science Board report on interrogation techniques entitled "Educing Information" was recently made public. The report cites the absences of development of new information gleaning techniques in the post-Cold War period and asserts that
this shortfall in advanced, research-based interrogation methods at a time of intense pressure from operational commanders to produce actionable intelligence from high-value targets may have contributed significantly to the unfortunate cases of abuse that have recently come to light.
They add that many interrogators "were forced to 'make it up' on the fly."
"Making it up on the fly" seems to sum up the Bush administration's approach to the war on terrorism, and it is imprisoning innocent people, condemning them to indefinite detention, torture and death; and degrading U.S. credibility and security.
Frida Berrigan is a senior research aassociate at the World Policy Institute's Arms Trade Resource Center.
© 2007 TomPaine.com