The Continuing Saga of Gitmo

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.

FILED UNDER: Terrorism, , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. Anderson says:

    Leaving aside the other issues, this guy was fifteen years old when he allegedly attacked & killed a Marine?

    As for “competence,” I hope we’re agreed that’s a joke. The MCA had very little to do with military commissions, and lots to do with granting everyone from Bush to Yoo to the CIA torturers their immunity from prosecution for violations of the War Crimes Act.

  2. Bithead says:

    I noticed that the one thing not being suggested in the article, is the Iraq war equivalent of “jury nullification” .

    Do you even allow for the possibility that the rulings in question are the results of those wishing to cripple our actions in Iraq?

  3. Hal says:

    We really have become an empire, with all that entails…

  4. Hal says:

    Do you even allow for the possibility that the rulings in question are the results of those wishing to cripple our actions in Iraq

    It’s like a different planet out there, ain’t it?

  5. davod says:

    This reeks of incompetence or collusion. The JAG Corps judges defends and prosecutes these cases. I would imagine they are also responsible for writing the rules of procedure.

    So we have a JAG lawyer telling a JAG judge that as his JAG adjudicated client has been adjudicated a lawful combatant not an unlawful combatant the rules do not allow for him to be tried for terrorism offences.

    Hmm, which of the JAG team screwed up. Or alternatively, JAG is either dumb or they knew this would happen, and I don’t think they are dumb.

  6. Steve Plunk says:

    Perhaps working out the technicalities is just part of the process with a new type legal proceeding. It doesn’t have to mean things are broken or need to be thrown out.

    This is a difficult process made so by the new type of enemy that is part military, part civilian, and part terrorist. How do you handle such people in a way that respects their humanity and protects the United States and it’s peoples? Not only that but we also have to maintain international respect to some degree.

    I see Guantanamo as a problem but not one we caused. Those incarcerated there were certainly up to no good and likely had killed or wanted to kill Americans. In different times they probably would have been shot rather than given a trial of any sort.

  7. >Those incarcerated there were certainly up to
    >no good and likely had killed or wanted to kill

    Something like 76% of Guantanomo detainees have been released without any charges. So either a LOT of innocent people are getting sent there by mistake, or the President is allowing a LOT of terrorists to go free. Neither possibility speaks well of his competence.

    Indeed, the whole issue here comes down to (once again) a competence issue. It’s hard to believe that more than five years after 9/11, the administration has failed to get its detainees formally declared unlawful combatants, nor finished setting up the processes needed to try them.

    Of course, the glorious leader can do no wrong, so now we’re hearing all these explanations why it’s the triunal’s fault for not just overlooking Bush’s bumbling ineptitude.

  8. legion says:

    Davod, bithead, why don’t you both broaden your focus a little… it seems unlikely that the JAG folks involved with this fiasco are either so incompetent or so traitorous that they haven’t assembled a better record of prosecutions. It’s far more likely (and this is supported by the lack of an obvious appeal route) that the system the JAGs are working under is hopelessly broken, and has been from the beginning.

    Unfortunately, that would lay the blame for so many terror suspects running free & innocent people lingering in Gitmo squarely at the feet of Rumsfeld, Cheney, Bush, and the RegentU legal hacks that created the bastardized, unworkable, inconsistent, immoral hash or rules we now see failing spectacularly.

  9. Bithead says:

    It’s like a different planet out there, ain’t it?

    So, there’s no politically motivated officers of the court on YOUR planet?