Stuck in Guantanamo

Thursday, June 7, 2007

THE BUSH administration's chronically failing attempt to invent a new legal system for holding and trying terrorism suspects has suffered yet another setback. On Monday, war crimes charges against two al-Qaeda suspects held at the Guantanamo Bay prison were dismissed by two different military judges. Both ruled that the administration had not legally established that the accused were "unlawful enemy combatants" and thus subject to trial by Guantanamo's military commissions. More than five years after President Bush rejected the Geneva Conventions and the U.S. court-martial system for handling al-Qaeda and Taliban prisoners, the first trial of a detainee once again has been put off indefinitely. That gives Congress a chance to rework the bad system it was stampeded into approving before last fall's midterm elections.

The administration's latest stumble resulted from the fact that the two men it was trying to put on trial, Salim Ahmed Hamdan and Omar Khadr, had been judged by Guantanamo's parallel system of Combatant Status Review Tribunals to be "enemy combatants" only, without the designation "unlawful." Contrary to the claims of embarrassed Pentagon spokesmen, the problem is not merely semantic but stems directly from Mr. Bush's disastrous decision to ignore the Geneva Conventions. Capt. Keith J. Allred, a military judge, ruled that Mr. Hamdan had never received "an individualized determination" that he was an unlawful combatant, as required under Geneva; without that, detainees are entitled to be treated as prisoners of war. The judge also found that the standard for "enemy combatant" used by the status tribunals was broader than that for "unlawful combatant" as established by Congress for purposes of the military commissions.

In theory, the administration could appeal the judges' rulings -- but the appeals court that is to hear military commission cases hasn't yet been established. The administration could also rehold tribunals for the approximately 80 Guantanamo detainees it intends to put on trial. Either way, the legal quagmire it has blundered into will only deepen, along with the discredit Guantanamo has already acquired around the world. Cleaning up the mess won't be easy: While closing Guantanamo is an important goal, this administration or its successor will first have to figure out how to dispose of those prisoners who cannot be tried or returned to their native countries and who are too dangerous to be released.

For now, Congress can mitigate the trouble by passing two pieces of legislation that are before it. One, to be voted on today by the Senate Judiciary Committee under the bipartisan sponsorship of Arlen Specter (R-Pa.) and Patrick Leahy (D-Vt.), would restore the right of habeas corpus to Guantanamo prisoners, allowing them to appeal their detentions to U.S. federal courts. The other, which has been attached to the Senate's version of the annual defense authorization bill by Sen. Carl M. Levin (D-Mich.), would reform the deeply flawed tribunal process at Guantanamo by requiring that detainees be represented by lawyers and have access to the evidence against them. The measure would also curtail the use of evidence obtained by coercion and require that the tribunals be headed by judges. If Guantanamo detainees are to be subject to special trials in which they could be sentenced to death, the process that determines them to be "unlawful combatants" who are eligible for that justice should be unimpeachable.

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