Cross-posted from PoliBlog:
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.
