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The Collective
Tuesday, June 5, 2007
By Dr. Steven Taylor

Via the BBC: Guantanamo pair’s charges dropped

A US military judge has thrown out charges against two Guantanamo Bay detainees, casting fresh doubt on efforts to try foreign terror suspects.

Both cases collapsed because military authorities had failed to designate the men as “unlawful” enemy combatants.

[…]

Under a new system of military justice approved by Congress last year, detainees facing trial must be designated “unlawful enemy combatants”.

When they were assessed years earlier they were described only as “enemy combatants”. The word “unlawful” did not appear, giving the new tribunals no jurisdiction.

It seems the same may apply to all the other 380 detainees, leaving the tribunal system in legal limbo while Bush administration lawyers race to clarify the situation.

While it may seem like a formality, the issue of whether these combatants are “lawful” or not is quite significant. Indeed, much of the predicate of Gitmo is that we had to find a way to deal with a new kind of militant on the battlefield: a large number of unlawful combatants.

Sadly, this current turn of events is emblematic for this entire ill-fated policy in Guantanamo-poor planning, inadequate definition of concepts and goals, and sloppy thinking.

So, what does this all mean?

The US government has basically three options, our correspondent says:

* throw the whole system out and start again, which would be very embarrassing for the Bush administration
* redesignate all the detainees as “unlawful enemy combatants”, which would require a separate administrative hearing
* appeal against the ruling - but this would need to be handled by an appeals court, the military commissions review, which has not yet been established

The fact that we also find ourselves to still not have the entire apparatus in place (i.e., point number three and the fact that an appeals process hasn’t been established) is a further embarrassment-and creates serious problems. To wit:

The judge left open the possibility that Mr Khadr could be re-charged if he appeared before an official review panel and was formally classified as an “unlawful” enemy combatant.

He said prosecutors could lodge an appeal within 72 hours, although it was not immediately clear who they could appeal to. Prosecutors have indicated they intend to appeal.

Remarkable-it is quite difficult to file an appeal, especially with a 72 hour time frame, when there is no one to whom one can appeal. (And this isn’t the first time that the incomplete nature of the rules has reared its ugly head).

My guess is that the administration will pursue the middle route.

The Congress may have to revisit the situation:

Senator Arlen Specter, the senior Republican on the Senate Judiciary Committee, told the New York Times that Monday’s ruling could prompt Congress to re-evaluate the legal rights of detainees.

“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantanamo milieu. There’s just a sense of too many shortcuts in the whole process,” he said.

Gee, ya think?

The thing is, like much of the anti-terrorism policies of this administration, we have been told of the clear and obvious need for the Guantanamo prison and for a new and separate justice system to deal with the detainees held there. All of this is sold as a requirement for the safety of the United States. However, when it comes to execution of the policy we see bumbling, half thought out proposals and a general lack of direction and logic save for a generic “we are doing it to keep us safe.”

The administration has a pattern of asserting that they understand a broad and comprehensive approach to dealing with terrorism, but when it comes down to actually demonstrating that they know what they are doing, and that we should “trust them” they fail to demonstrate competency. Indeed, at the end of the day they clearly have a far smaller understanding of the basic problem than they claim, and have similarly spent far less time trying to figure it out than they should have done.

This is not a surprise at this point, and amounts to old news, but it is a gift that, unfortunately, keeps on giving.

At a minimum, if Guantanamo was filled with slam-dunk cases of evildoers, it would seem that this would be a little easier to figure out what to do with them than it has been.

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Filed under: US Politics, War on Terror | |

8 Comments

  1. I’ve been very interested in this legal maneuvering. For a long time we were told that the military courts were absolutely unable to be fair to the enemy. It seems that the military legal system is triple-checking everything to show that it really can be fair.

    Or it could be that the people who run the military court system don’t agree with the tribunals, and are doing what they can to protest the whole thing. Institutional inertia.

    > He said prosecutors could lodge an appeal within 72 hours, although it was not immediately clear who they could appeal to.

    Something tells me that’s the judge’s hint that he doesn’t think the whole thing’s fair. By putting such a short deadline on the appeal he seems to be closing the door on future appeals because prosecutors “already had their chance.” The prosecutors can’t cry foul, because if they can’t truly appeal, neither could the accused combatant.

    So does this mean I’ve come ’round to seeing Guantanamo as the worst the the US has ever done? No. For years we heard people complain that prisoners were being held in Guantanamo without trial, but now that some of them are being charged with crimes and put on trial, those same people complain that it’s not fair to charge them! Apparently the war in Afghanistan was supposed to be the first time that the US military wouldn’t take any prisoners (but wouldn’t shoot them, either; that’s against the Geneva Conventions). How that’s supposed to work, I have no idea.

    I will agree that it is both surprising and embarrassing that fundamental questions of how these tribunals work haven’t been ironed out. Until Congress rewrote the relevant law, the tribunal system dated back to WWII. The fact that it hadn’t been updated implies that all through Korea, Vietnam, Grenada, Panama, Beirut, Gulf War I, and several other conflicts, the US military simply didn’t charge its prisoners with war crimes (aside from, say Manuel Noriega, but I believe he was charged with regular felonies, not war crimes). That would imply, then, that any prisoners taken in those conflicts were held without trial. Oh my gosh! It appears Bush didn’t invent the idea that POWs aren’t criminals, and aren’t necessarily going to be tried as criminals. What a scandal!

    Comment by Max Lybbert — Tuesday, June 5, 2007 @ 4:12 pm

  2. The problem with comparisons to Korea, Viet Nam and Gulf War I is that those were conflicts with uniformed militaries and the prisoners would have been treated under the Geneva Conventions and released when the wars were over. The problem with Gitmo and the who “illegal combatant” issue is that there is not precedent to fit this many prisoners from a conflict that could theoretically never end (the “War on Terror”).

    Indeed, they aren’t even technically POWs.

    This is actually a very, very thorny situation.

    (And I can’t imagine that we had many, if any, prisoners from Grenada, Panama, Beirut, etc. And those were very different types of conflicts to the one we now face.

    Comment by Dr. Steven Taylor — Tuesday, June 5, 2007 @ 4:38 pm

  3. That there is no precedent to fit this many prisoners from a conflict is not true. I think the official count from the Gulf war was something like 60,000.

    That there is a difference between “uniformed combatants” and any other combatants is a distinction made only in academic circles. I was a soldier in this war, and as far as I’m concerned, if I am uniformed (and I always was), and someone shoots at me (and they frequently did), regardless of whether they are part of a national army, regardless of whether they are uniformed, they were a combatant in the same sense of the word as a German soldier in WW2. It may be an interesting intellectual exercise to think of different categories of combatants, but from my point of view such categorization is silly. There are two categories that matter: combatants and non-combatants. Either you’re a shooter or an innocent bystander. There are no halfway points.

    In the past it may have sometimes been easier to tell which was which, but not always. In most of the conflicts of the 20th century there were cases of combatants being caught out of uniform. The reason you don’t typically hear about them is that they were dealt with far more harshly than the way we are dealing with unconventional combatants today. I’m not speaking on the rightness or wrongness of that; I’m just saying, in previous conflicts, without embedded reporters, without the internet, these people were interrogated in the field for what data could be gleaned from them and then disposed of in the manner that was most convenient to the command, and no one was ever the wiser. This is not the first time there has been muddy water; it’s just the first time people have seen it.

    What I see happening is not so much the bumbling of the administration (though there is a fair share of it) but a larger issue in the errosion of the trust in the military, in the soldiers, to make the distinction between friend and foe. In past conflicts the men on the ground, who actually participated in the capture of combatants, were trusted to make the call as to whether they should be handled as prisoners of war and detained or set free as innocent bystanders.

    Where I think the administration erred was in accepting the idea of a separate justice system in the first place. That they failed to deliver it is a blessing in disguise; it is not needed, and will only interfere with the ability of our military and intelligence professionals to do their jobs. There is no need for a new justice system, or any justice system save the military tribunals that are being offered. Enemy combatants should be held as long as they have intelligence value or as long as the command deems them capable of rendering aid to our enemies. It is unfortunate for the detainees that this could be a very long time, but they had their chance in choosing sides - they chose the wrong one. War is unpleasant and many lives are destroyed by it. Realism.

    When you choose to fight in a war (and I don’t care if you have a uniform on or not), you choose to throw a lot of the niceties of life out the window. One of the things you throw out the window is your right to a day in court. I wouldn’t have got it if I had been caught by the Taliban, or by one of the militias in Iraq. That’s just not the way wars are fought, and it’s sad, but it’s just a cold slice of realism to admit that.

    If anything, I have far LESS compassion for the prisoners of this conflict than I might have for prisoners of historical conflicts. In the past, men were drafted or conscripted and pressed into service. I knew going into every gunfight in Iraq that every single one of the guys shooting back at me was a volunteer. If anything, it was MORE clear to me who was guilty and who was innocent. The innocent were the people running away from the explosions and the gunfire; the guilty were the people running towards. I know the guys at Guantanamo need to be there. I trust the professionals who were trained to make that distinction. It’s not a matter of trusting THE ADMINISTRATION! George W. Bush and his staff are not scouring the world in person, rounding up combatants.

    What is really a very black and white distinction to people like me has been turned into a mushy shade of gray by people who are not directly connected to the conflict, and that, too, strikes me as a bit presumptive.

    Comment by CPT D — Wednesday, June 6, 2007 @ 12:49 am

  4. Robert,

    You are talking about on the battlefield, where I will readily grant that shooter/non-shooter is a wholly legitimate issue.

    And the issue here is not numbers: it is time and a host of other issues. We did hold prisoners from the first gulf war for five years with no idea of how much longer we would hold them.

    Further, it isn’t about some mushy discussion limited only to academics-it is a legal issue and not an inconsequential one. There are also very important policy questions that need answering.

    I understand where you are coming from, but no one, not even soldiers on the ground, are infallible. The notion that in the fog of war that all persons detained are, ipso facto, guilty (and all equally guilty) because they were apprehended is a problematic position to take.

    Mistakes are made on the battlefield, and you know that to be true.

    So, while I understand that you have great faith in your fellow soldiers, you can’t just, by faith, declare their actions to be perfect and you can’t just say that because US soldiers have been involved in an action that the resultant policies created by the US government in regards to detainees therefore is immaculate and just.

    I have to conclude and state that I utterly reject the notion that only those directly involved in a conflict are allowed to comment on it or to critique it. That way lies the destruction of democracy. Indeed, sometimes it is too easy to see black and white when one is involved in something and it takes a voice from the outside to ask whether, in fact, things are as black and white as they seem.

    Comment by Dr. Steven Taylor — Wednesday, June 6, 2007 @ 8:45 am

  5. The problem with comparisons to Korea, Viet Nam and Gulf War I is that those were conflicts with uniformed militaries …

    But the uniform issue, when it comes to “holding people without trial” is, frankly, irrelevant. It’s a binary question; you’re either held without trial or you’re not (meaning you’re let go or you are charged). Are you saying it’s perfectly fine to hold people in uniform without trial? I thought that being held without trial was a terrible thing.

    Now, to be honest, the full quote is:

    The problem with comparisons to Korea, Viet Nam and Gulf War I is that those were conflicts with uniformed militaries and the prisoners would have been treated under the Geneva Conventions and released when the wars were over.”

    The Geneva Conventions specifically distinguish between regular soldiers in a uniformed military and irregular “belligerents.” And the Conventions state that the uniformed soldiers get more protections than irregular belligerents. If it’s perfectly acceptable to hold uniformed soldiers without trial, then it must be perfectly acceptable to hold irregular belligerents without trial.

    As to the “and released when the war was over”:

    The problem with Gitmo and the who “illegal combatant” issue is that there is not precedent to fit this many prisoners from a conflict that could theoretically never end (the “War on Terror”.

    Korean and Vietnamese POWs were released at the end of the Korean and Vietnamese conflicts, and not kept until the end of the Cold War. It seems pretty obvious to me that detainees captured in Afghanistan can only be held until the end of fighting in Afghanistan, and enemies captured in Iraq can be held until the end of fighting in Iraq. That is, unless the detainees are found guilty, in some court, of war crimes. Which is precisely why they are being charged.

    But what about Padilla? Padilla was captured by civil authorities and transferred to military custody. I have concerns about that. However, when he was transferred, the argument given was that he had been fighting US forces in Afghanistan, therefore he can only be held as a detainee until fighting ends in Afghanistan. If he’s convicted of a war crime or a regular felony, he can be held as a criminal until his sentence is over.

    Any guess why he’s been charged with crimes?

    Comment by Max Lybbert — Wednesday, June 6, 2007 @ 10:39 am

  6. Let’s reduce it to the basic challenge here: we do not a precedence, process or set of international agreements (or domestic laws) that provide a framework for dealing with a substantial number of belligerents captured on the battlefield who could theoretically be held indefinitely.

    The nice think about uniformed soldiers, to oversimplify a bit, is that one knows a) to whom they belong and b) therefore what to do with them once the hostilities cease with the government in question. Further, you know that uniformed soldiers are functioning as the agents of a legally recognized entity: a given state in the context of a conflict between states.

    It creates a lot more clarity than we currently have-which is the point.

    The current detainees are in a limbo in terms of classification: are they agents of a given state? of an organization? Are they soldiers or criminals? Are they a danger even if certain states have been re-constituted (e.g., Afghanistan).

    And really, the administration is not treating Iraq and Afghanistan as discrete conflicts-they are treating them as part of the War on Terror and therefore the release date of belligerents captured in such a context is vague at best. I think that it is the abstraction caused by the whole War on Terror policy that is leading to a lot of the confusion within the administration itself-sloppy thinking tends to beget more sloppy thinking. I have reached a point where I don’t except that we have slam-junk cases against all of these people that would justify indefinite detainment. Some, yes, but not all. However we have placed ourselves in a confusing place in terms of policy making and so we get the kinds of results that led to the original blog post above.

    Padilla raises his own can of worms, which I have blogged on separately.

    And the bottom line is we still haven’t figured out how to charge and try these people. It is a clearly problematic situation.

    Comment by Dr. Steven Taylor — Wednesday, June 6, 2007 @ 10:58 am

  7. Let’s reduce it to the basic challenge here: we do not [have] a precedence, process or set of international agreements (or domestic laws) that provide a framework for dealing with a substantial number of belligerents captured on the battlefield who could theoretically be held indefinitely.

    That depends on the definition of “indefinitely.” During any conflict, there is no set date when hostilities will cease, and under precedence and international agreements we can hold any number of POWs, belligerents, people who happened to be in the wrong place at the wrong time until the hostilities cease. Under some definitions of “indefinitely,” that is “indefinite detention.”

    Of course, in Hamdi, the Supreme Court (1) could not find any domestic law (or treaty obligations) that put any more limit on these kinds of detentions, and (2) decided that the question had never been addressed, so it fashioned a review process — modeled after Social Security appeals — for the government to justify continued detention of prisoners.

    And really, the administration is not treating Iraq and Afghanistan as discrete conflicts–they are treating them as part of the War on Terror and therefore the release date of belligerents captured in such a context is vague at best.

    I’ll concede that they conflate the two in speeches.

    It’s unusual for the US to be involved in two wars simultaneously. The first example that comes to mind is WWII (Japan, Germany/Italy, and skirmishes in Africa and the Middle East). The history books have conflated those conflicts, and FDR’s rhetoric at the time did the same; but you will notice that the various conflicts were easily delineated, and that recovery efforts were likewise delineated (the Marshall Plan, for instance, had defined geographic boundaries).

    Using a phrase like “War on Terror” does not give rise to these kinds of concerns any more than speeches that referred to the “Cold War” meant that the US could hold Vietnamese prisoners as long as a Communist government ruled in Moscow. Or that the War on Poverty had to be governed by the Geneva Conventions.

    Comment by Max Lybbert — Wednesday, June 6, 2007 @ 3:20 pm

  8. I would argue that they do more than just conflate the two in speeches.

    In re: the “Cold War” v. “WoT”-but the point is, as you noted, we didn’t hold prisoners from Korea or Viet Nam or elsewhere until 1991.

    And no, terminology does not give rise to anything in and of itself-you could call it “Fred” and it wouldn’t automatically result in policy. Still, the administration’s muddle definition of the concept has led us to where we are, and isn’t exactly a picture of policy-making brilliance (or even competence).

    Comment by Dr. Steven Taylor — Wednesday, June 6, 2007 @ 3:30 pm

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