Roguely Stated

A US Army colonel single-handedly threw the Congressionally-prescribed, Bush-approved Military Commissions system into turmoil Monday, raising questions – once again – about what’s next for the nearly 400 detainees currently calling Guantanamo Bay, Cuba home. Why can’t the government get its act together and conduct legitimate trials for the Gitmo detainees?

From UPI:

The Bush administration said Tuesday it disagrees with the dismissal of war crime charges against [Yemeni Salmi Ahmed Hamdan and Canadian Omar Khadr].

Army Col. Peter Brownback dismissed the case Monday against Omar Khadr, 20, a detainee who allegedly killed a U.S. serviceman during fighting in Afghanistan in 2002, The Washington Post reported.

Khadr had been labeled an “enemy combatant” and was scheduled to be arraigned before a military commission at Guantanamo Bay.

Brownback said the Military Commissions Act of 2006 limited the crimes to those named as “unlawful enemy combatants.” Charges were dropped against Yemeni national Salim Ahmed Hamdan on the same ground, the Post reported.

(Confounding the issue in the case of Khadr is his age – he was only fifteen when he was captured in 2002, raising questions about his ability to stand trial for war crimes).

In his book Guantánamo and the Abuse of Presidential Power, Joseph Margulies, lead attorney for Shafiq Rasul in his action against the United States contesting his detention, offers that the detainees at Guantanamo Bay felt the most significant anguish not from coercion and oppression at the facility, but rather from the uncertain and indefinite nature of their circumstance. Prisoners in a conventional war, Margulies says, know that certain events signal the end of combat and the return of prisoners of war to the enemy. The time horizon for the end to the GWOT is unknown. Even the events that might signal an end to the GWOT are unknown. “…it is this gnawing that uncertainty drives men mad.”

Freedom is an intensely guarded component of the American ethos. “The Revolution of the United States,” Alexis de Tocqueville wrote, “was the result of a mature and reflecting preference for freedom, not of a vague or ill-defined craving for independence.” Americans are prone to “view any privation of [freedom] with great regret.” Yet since September 11, 2001, the American government has seized US Citizens, citizens of ally nations, and others and denied or long delayed due process to determine their detainee status, let alone the legality of their detention, or their guilt. There has been little uproar and there has appeared to be no “regret” on the part of anyone other than Constitutional law scholars and the ACLU. If de Tocqueville could see us now.

While perhaps, as the Pentagon contends, the Brownback ruling revolves around issues of semantics and technicalities, the government has failed to institute a functioning regime under which to try persons such as Hamdan and Khadr. Too much time has passed for this to be the case. I’m not in favor of setting legitimate terrorists like Hamdan free, but ample time has passed for the government to resolve a legitimate means to dispose of these cases.

Special challenges are of course brought about by the “Long War” that is the GWOT. While at war, the right to kill combatants in battle is in play and, therefore, the lesser right to detain combatants is inherently included. However, given the open-ended nature of the GWOT it’s simply not good enough for the government to indefinitely detain people without affording due process. It’s un-American.

MORE:
[WaPo] Guantanamo Ruling Renews The Debate Over Detainees: Bush Policy Faces New Hill Challenge
[Arab News] Judges Throw Out Charges Against Two Gitmo Detainees
[National Security Advisors] Military commission jurisdiction – a more detailed ruling in Hamdan helps clarify matters
[Balkinization] Odds and Ends on Khadr and Hamdan
[HuffPo] Finding a Remedy for Gitmo
[LATimes Opinion] Margulies: Gitmo, A fetid and cancerous symbol
[Guardian] Profile: Salim Ahmed Hamdan
[GPO] Text of Military Commissions Act of 2006