Finding a Remedy for Gitmo
*Cross-posted from The Huffington Post
Yesterday, judges
in the military commissions established by the 2006 Military
Commissions Act at Guantánamo dismissed charges against two detainees
charged with "war crimes" -- Omar Khadr and Salim Hamdan. According to the Times,
the rulings, which were both on highly technical grounds, threw the
commissions into "turmoil." In fact, the Government can circumvent the
rulings relatively easily and without dealing with the many, deeply
serious problems implicated by the military commissions -- and the
whole question of Guantánamo.
Speed bumps are
nothing new for President Bush's military commissions. The White House
first issued rules for the commissions in November 2001,
but trials didn't follow quickly. Detainees began arriving in
Guantánamo only two months later. And the government did not move
expeditiously to identify war criminals and to charge them. Lead
defendant Salim Hamdan -- who was accused of being Osama bin Laden's
driver -- was not even found eligible for trial by the President until
July 2003, and was not even charged until July 2004.
(Incidentally, in between these dates the military kept Hamdan into
solitary confinement and so putting him under not-so-subtle pressure to
cop a plea). Thanks to phenomenal lawyers, Hamdan fought the
president's military commissions, and in June 2006 won: The Supreme
Court, in the now landmark case of Hamdan v. Rumsfeld invalidated the commissions as beyond the President's authority.
The White House's response was swift and furious -- and took the
form of the Military Commissions Act of September 2006, which
reinstituted a system of "military commissions," or trial courts that
are only for cases related to terrorism and that only operate at
Guantánamo.
But even these new congressionally-authorized bodies have floundered. Proposing the new law, Bush proclaimed "The need for this legislation is urgent," but it wasn't for months before the first prosecutions were brought.
In the first case before the new commissions, Australian detainee
David Hick entered a plea bargain. On the surface, this was a coup for
the government because it could finally -- after more than five years
-- proclaim a victory. But look more closely and the government's
victory slips from view. Hicks was convicted of "material support" for
terrorism (which, incidentally, is a federal crime first legislated in
the early 1990s--it is not now and never has been a "war crime").
But Hicks' plea agreement stipulated a sentence of not more than nine
months. By point of comparison, a person can be sentenced up to five
years if they lie to a federal officer (a point to remember the next
time you're bringing unpasturized French cheese through U.S. customs
....) -- and eight years if the lie has some connection to terrorism.
Stated otherwise, Hicks got just more than a tenth of the sentence he
could have received had he lied in the course of a counter-terrorism
investigation.
Hicks entered his deal after five years' in Guantánamo, and after
his military lawyer conducted a magnificently effective public
relations campaign in the United States and Australia. Especially in
Australia, the John Howard came under heavy fire for its failure to
intervene in Hicks' case (see, for example here).
And, rather conveniently, Hicks will be unable to speak to the press
until well after the next Australian election. The Hicks sentence, in
short, is little more than convenient cover for an international
political embarrassment.
Yesterday's rulings are further evidence of how compromised the
military commissions are. The ruling did not address the real and
substantial concerns raised by the structure of the military
commissions, or the summary bodies (called "combatant status review
tribunals" or CSRTs) that declare individuals to be enemies of the
nation. Rather, both rulings rested on a relatively minor, but telling,
procedural point.
The point is worth describing in brief: A detainee is first
classified as a properly detained by a CSRT. Only then can he be
brought before a military commission. The Military Commissions Act (in
10 U.S.C. §948(c) for those of you want to follow along) says that any
"alien unlawful enemy combatant" can be tried by a military
commissions, and the statute (in 10 U.S.C. §948(a)) defines "unlawful
enemy combatant." So far so good, right?
Well, no. The problem arises because the CSRTs function under a set of Defense Department Rules
that long predate the Military Commissions Act. Those Defense
Department rules do not use the term "unlawful enemy combatant." They
talk about "enemy combatant" -- and they define this slightly
differently from the terms used in the Military Commission Act
(Professor Robert Chesney has an excellent and detailed explanation here).
What happened yesterday was that the military commissions noticed
the mismatch between the CSRT definition and the military commissions
definition -- and stopped the trial until the two defendants were
properly re-classified.
The government now has a couple of options. It could do a new CSRT
(although this would mean also issuing new CSRT rules). Or it could ask
the commission itself to make a finding that the Khadr and Hamdan are
"unlawful enemy combatants." The latter would get the trials back on
track relatively quickly. Yesterday's events would end up being yet one
more hiccup in the rough road that the military commissions have been
traveled.
So what's the broader significance of yesterday's events? It's not
so much that these developments will derail the commissions. Nor is it
that the rulings yesterday address the larger, structural issues raised
by the commissions. Khadr, for example, is being denied the counsel of
his choice because they happen to be Canadian and not American. (A
silly and arbitrary rule). Moreover, Khadr was only fifteen when he was
seized. Under international law and the military's own rules -- enacted
into law in the Uniform Code of Military Justice -- he cannot be held
culpable for his acts. This sort of systemic problem won't be solved by
this kind of technical glitches and slip-ups of the kind we saw
yesterday. For that we need a broader remedy -- most importantly the
restoration of habeas corpus and the reimposition of the rule of law on
the "law-free zone" that is Guantánamo.
