Charges dropped in Gitmo tribunal case

From the American Civil Liberties Union, June 4:

GUANTÁNAMO BAY, CUBA – A United States military judge today dismissed charges in the case of Omar Khadr, a Canadian who was 15 years old when he was arrested by U.S. forces in Afghanistan. The American Civil Liberties Union said today’s surprise decision is further evidence that the Military Commissions Act signed by President Bush in October 2006 is fundamentally flawed.

Jameel Jaffer, Director of the ACLU’s National Security Project, attended the proceedings in Guantánamo Bay today and issued the following statement:

“This is a major setback for the military commissions. The ACLU has been monitoring this system for three years now and over that time the only constant we have observed has been chaos. The court’s dismissal of the charges against Khadr provides even more evidence that these proceedings are fundamentally flawed. It is long past time that war crimes trials are shifted to ordinary courts martial or civilian courts. The civilian courts in the United States have dealt successfully with terrorism prosecutions over the last five years.

“The Bush administration cannot simply ignore the rule of law and create its own legal system for trying detainees and expect prosecutions to run smoothly.”

The ACLU has called on Congress and the Bush administration to shut down Guantánamo Bay. Last month, the ACLU endorsed legislation introduced by Senator Tom Harkin (D-IA) that would effectively end the practice of indefinite detention without charge or due process for detainees who have been held for as long as five years without knowing the reason for their detention. It would also provide an incentive for the government to finally charge those detainees it believes are guilty of crimes against the United States.

See our last posts on the torture and detainment scandal and Omar Khadr.

“Enemy combatants”: legal fiction crumbling?
From the New York Times, June 5:

The Bush administration’s attempt to create an alternative justice system for terrorism suspects, in the works for more than five years, has yet to complete a single trial.

After an earlier version of the system was rejected by the Supreme Court last year, the administration and Congress went back to the drawing board. The result was the Military Commissions Act, which was meant to settle a host of difficult questions once and for all.

But the system took two more blows yesterday, when, in separate proceedings, military judges dismissed charges against prisoners held at Guantánamo Bay, Cuba, on the ground that the administration had not managed to comply with the new law it pushed through Congress just last fall…

No one will go free as a consequence of the decisions, and the administration has a variety of ways, yet again, to try to fix the system. It is likely to appeal the decisions to another new body, the Court of Military Commission Review. Further appeals, to the United States Court of Appeals for the District of Columbia Circuit, are also possible.

Several legal experts said military prosecutors had substantial arguments for reversal. And even if the decisions are sustained, the problems they identified can be remedied by amending Defense Department regulations or the Military Commissions Act…

The question at the heart of the cases is a jurisdictional one arising from the fact that there are two kinds of tribunals at Guantánamo. One, the Combatant Status Review Tribunal, created by Pentagon regulations, makes a threshold determination about whether detainees were properly designated “enemy combatants” and are therefore eligible to be held at Guantánamo. That tribunal has not — and this turns out to be important — made determinations about whether those same people are “unlawful” enemy combatants.

There have been 558 of those reviews; they are quite cursory.

The second kind of tribunal is the military commissions. They are intended to hear war crimes cases, and resemble conventional courts. There have been no completed trials before a military commission at Guantánamo. Yesterday’s decisions mean there are not likely to be any soon.

The Military Commissions Act said the commissions could hear only war crimes cases involving violations of the laws of war “by an alien unlawful enemy combatant.” It added that the commissions “shall not have jurisdiction over lawful enemy combatants.”

The distinction is an important one, said Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee. “It’s not a crime to be an enemy combatant,” he said.

Lawful enemy combatants are, broadly speaking, uniformed soldiers fighting for a government. Unlawful enemy combatants, according to the Military Commissions Act, are everyone else who has engaged in or supported hostilities against the United States, including members of Al Qaeda and the Taliban.

The question in yesterday’s decisions was which tribunal has to make the determination concerning “unlawful enemy combatants.” Under one reading of the new law, only the combatant status tribunal can make it. Under another, the military commissions themselves can decide whether they have jurisdiction.

The two decisions yesterday indicated that Congress had contemplated a two-step process, with the status review tribunal making the initial determination and the military commission trying the criminal case. The Military Commissions Act certainly required either the status review tribunal or, in its words, “another competent tribunal” to make the determination. Several experts said that other tribunal could be the military commission.

If the decisions are upheld, either the Defense Department regulations governing the status review tribunals or the Military Commissions Act will have to be amended to allow the trials to go forward.

That second option would be a welcome development, Mr. Specter said.

“This may be an avenue for Congress to re-examine the whole procedure,” he said, “including habeas corpus.”

More broadly, critics asked whether a separate justice system was needed at all.

“This just reinforces the notion that the system is in chaos and that they’re making it up on the fly,” said Steven R. Shapiro, the legal director of the American Civil Liberties Union. “The time is long overdue for all these cases to be transferred to military courts-martial or civilian courts.”

Bill Weinberg says:

June 5, 2007 at 10:14 pm

“Enemy combatants”: legal fiction crumbling?
From the New York Times, June 5:

The Bush administration’s attempt to create an alternative justice system for terrorism suspects, in the works for more than five years, has yet to complete a single trial.

After an earlier version of the system was rejected by the Supreme Court last year, the administration and Congress went back to the drawing board. The result was the Military Commissions Act, which was meant to settle a host of difficult questions once and for all.

But the system took two more blows yesterday, when, in separate proceedings, military judges dismissed charges against prisoners held at Guantánamo Bay, Cuba, on the ground that the administration had not managed to comply with the new law it pushed through Congress just last fall…

No one will go free as a consequence of the decisions, and the administration has a variety of ways, yet again, to try to fix the system. It is likely to appeal the decisions to another new body, the Court of Military Commission Review. Further appeals, to the United States Court of Appeals for the District of Columbia Circuit, are also possible.

Several legal experts said military prosecutors had substantial arguments for reversal. And even if the decisions are sustained, the problems they identified can be remedied by amending Defense Department regulations or the Military Commissions Act…

The question at the heart of the cases is a jurisdictional one arising from the fact that there are two kinds of tribunals at Guantánamo. One, the Combatant Status Review Tribunal, created by Pentagon regulations, makes a threshold determination about whether detainees were properly designated “enemy combatants” and are therefore eligible to be held at Guantánamo. That tribunal has not — and this turns out to be important — made determinations about whether those same people are “unlawful” enemy combatants.

There have been 558 of those reviews; they are quite cursory.

The second kind of tribunal is the military commissions. They are intended to hear war crimes cases, and resemble conventional courts. There have been no completed trials before a military commission at Guantánamo. Yesterday’s decisions mean there are not likely to be any soon.

The Military Commissions Act said the commissions could hear only war crimes cases involving violations of the laws of war “by an alien unlawful enemy combatant.” It added that the commissions “shall not have jurisdiction over lawful enemy combatants.”

The distinction is an important one, said Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee. “It’s not a crime to be an enemy combatant,” he said.

Lawful enemy combatants are, broadly speaking, uniformed soldiers fighting for a government. Unlawful enemy combatants, according to the Military Commissions Act, are everyone else who has engaged in or supported hostilities against the United States, including members of Al Qaeda and the Taliban.

The question in yesterday’s decisions was which tribunal has to make the determination concerning “unlawful enemy combatants.” Under one reading of the new law, only the combatant status tribunal can make it. Under another, the military commissions themselves can decide whether they have jurisdiction.

The two decisions yesterday indicated that Congress had contemplated a two-step process, with the status review tribunal making the initial determination and the military commission trying the criminal case. The Military Commissions Act certainly required either the status review tribunal or, in its words, “another competent tribunal” to make the determination. Several experts said that other tribunal could be the military commission.

If the decisions are upheld, either the Defense Department regulations governing the status review tribunals or the Military Commissions Act will have to be amended to allow the trials to go forward.

That second option would be a welcome development, Mr. Specter said.

“This may be an avenue for Congress to re-examine the whole procedure,” he said, “including habeas corpus.”

More broadly, critics asked whether a separate justice system was needed at all.

“This just reinforces the notion that the system is in chaos and that they’re making it up on the fly,” said Steven R. Shapiro, the legal director of the American Civil Liberties Union. “The time is long overdue for all these cases to be transferred to military courts-martial or civilian courts.”

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