Cross posted from The American Prospect
Last week’s surprise rulings by two military judges at Guantanamo Bay threw into turmoil the president’s effort to try suspected terrorists by military commissions. The rulings halted current proceedings involving two detainees and sparked new debates about the wisdom and legality of the commissions themselves. But larger questions remain about the role that such military commissions fill at Guantanamo, where the overriding purpose is to detain individuals without any trial at all. That purpose is obscured by the continued and misplaced focus on military trials—a product of our cultural fascination with courtroom drama.
It’s worth recalling the genesis of these trials. The president created military commissions two months after September 11 as part of his “new paradigm.” The administration claimed that the commissions provided the necessary speed and flexibility to bring suspected terrorists to justice. These were attributes, the administration argued, that criminal trials in civilian courts lacked. The expectation was that most detainees taken to Guantanamo would be quickly charged and convicted.
But within months, the administration realized that it did not have the evidence to charge, let alone convict, most Guantanamo detainees of anything. As Lt. Col. Thomas S. Berg, a member of the original military prosecution team, told the press, “It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield. We literally found guys who had been shot in the butt.”
So, the administration changed gears, turning Guantanamo into a permanent system of indefinite detention. In more than five years, only ten of the seven hundred individuals detained at Guantanamo have even been charged before military commissions, and no trial has taken place.
Last June, the Supreme Court decided a legal challenge to the commissions on behalf of the detainee Salim Hamdan. The Court ruled in that case, Hamdan v. Rumsfeld, that the president had exceeded the authority granted by Congress to try individuals by military commissions.
Hamdan was a landmark ruling. It affirmed the importance of the separation of powers between the three branches of government and vindicated the Judiciary’s role in checking abuses by the Executive. It also clarified that the Geneva Conventions protect all detainees against torture and other mistreatment. But Hamdan did little to alter the reality at Guantanamo. The Supreme Court did not question the notion that Hamdan—like the hundreds of other prisoners at Guantanamo—could be held without charge, prompting Guantanamo’s commander to describe the decision’s “direct impact” as “negligible.”
The administration and its allies in Congress responded to Hamdan by engineering passage of the Military Commissions Act (MCA) authorizing military trials. This legislation also eliminated habeas corpus for the nearly four hundred detainees who remain at Guantanamo without charge.
Since the MCA’s passage in October, only three detainees have been put before military commissions. The first, David Hicks, pled guilty in March, in a nakedly political deal widely denounced as a travesty. Hicks—once described as a dangerous terrorist—was returned to Australia, where he will serve an additional nine months before being freed. Trials for the other two detainees, Omar Khadr and Salim Hamdan, were halted by last week’s rulings.
Those two rulings turned on the fact that a Combatant Status Review Tribunal (CSRT) had labeled the detainees “enemy combatants,” and not “unlawful enemy combatants,” as the MCA requires. As a result, the administration must convene a new CSRT and find these detainees “unlawful enemy combatants” if it wants to try them. The administration has sought reconsideration of the ruling.
The military judge in Hamdan’s case, however, also touched upon a fundamental paradox that lies at the heart of Guantanamo. The judge explained that the CSRT, which determines who can be detained, employs a “less exacting” definition of “enemy combatant” than does the MCA. The CSRT requires showing that individuals were a “part of” or “supporting” Taliban, al-Qaeda, or “associated” forces, and allows for detention based upon mere association. The MCA, by contrast, limits a commission’s jurisdiction to those who actually “engaged in hostilities” or who “purposefully and materially supported hostilities.”
More importantly, the military commissions provide detainees with significantly greater protections than the CSRT, including a lawyer and the presumption of innocence. In other words, convicting someone in a military commission is considerably more difficult than detaining them without trial by labeling them an “enemy combatant.”
Of course, requiring greater protections for those accused of war crimes than those merely detained for the duration of hostilities makes sense in a conventional conflict. In World War II, for example, there was little question that captured German or Japanese soldiers were, in fact, enemies. At the same time, their detention was limited to the duration of a war that had a clear and definite end, and they were afforded the protections of the Geneva Conventions.
But neat divisions between detention and trial break down when applied to the administration’s “war on terror,” which has no identifiable enemy or battlefield. As a result, it is easy to mistakenly detain people based upon suspicion, innuendo, or mere association. At the same time, detention as an “enemy combatant” amounts to a potential life sentence, since the “war on terror,” the administration says, may last generations. These circumstances call for far greater safeguards than the CSRT provides and underscore the importance of habeas corpus review before a federal judge.
The open-ended and undefined nature of the “war on terror” also has significant practical implications for Guantanamo. It means that the administration has no incentive to try people, since its evidence—in many cases weak or non-existent—would be exposed to greater scrutiny. Instead, it can simply hold people forever by branding them “enemy combatants” through a sham CSRT process that relies on secret evidence, denies detainees lawyers, and relies on information gained through torture.
Given all this, why does the Administration persist in its efforts to salvage military commissions? For one thing, it wants to demonstrate to the world that it has established a viable alternative to the civilian justice system for trying and convicting suspected terrorists. But the commissions also serve another purpose. They help perpetuate the false impression that most detainees at Guantanamo are, as Defense Secretary Donald Rumsfeld called them, “the worst of the worst”—bad people who will one day be tried and brought to justice. This helps mask Guantanamo’s true purpose: indefinite detention without charge of individuals who, by and large, are neither enemies nor combatants.
Solving the problem of Guantanamo thus requires looking beyond the failed military commissions. The United States must stop holding people in legal limbo by declaring them “enemy combatants.” To address this underlying problem, Congress should take two straightforward actions: restore habeas corpus and prohibit the imprisonment of terrorist suspects who have not been charged with a crime in a civilian court.
Jonathan Hafetz: “How Military Commissions Obscure Gitmo’s Real Purpose” (PDF)