The Bush administration’s five year odyssey to create a parallel justice system to put suspected terrorists on trial was dealt yet another setback on Monday when two separate military judges ruled that the Military Commissions currently have no jurisdiction over any of the detainees at Guantanamo.
Here is what happened: In a humiliating blunder, the Military Commissions were drawn up to apply only to detainees determined to be “unlawful enemy combatants,” but no detainee at Guantanamo has ever been determined to be an unlawful enemy combatant. The tribunals hastily established by the Bush administration only classified detainees as “enemy combatants,” a category that can include lawful and unlawful enemy combatants.
One might think that someone in the government would have noticed this discrepancy before Monday. Either they did not, or they simply assumed that since this is a trial system created out of whole cloth they could make up the rules as they went along and niggling details like jurisdiction wouldn’t get in their way. It is in some ways encouraging that the military judges refused to go along with this sloppiness and followed the letter of the law.
Here is what did not happen: The military judges did not make any evidentiary ruling on whether or not the two detainees were actually “unlawful enemy combatants,” meaning the government can re-file these charges against these two detainees at any time. Additionally, even though these charges were dismissed, the detainees were not released from custody. In fact, even if they had been acquitted, they would not have been released, since the Bush administration maintains that the war crimes trials before the Military Commissions have no bearing on whether the detainees are lawfully detained as enemy combatants subject to imprisonment until the cessation of hostilities.
At least one of three things will happen next:
— The government can appeal the judges’ rulings, however this seems unlikely because in another demonstration of this shoddy system the appeals court that would hear the government’s claims has not yet been created;
— The government could reconstitute the tribunals that made the original determination that the detainees were enemy combatants and seek a new ruling that they are unlawful enemy combatants;
— or Congress could amend the statute that created the Military Commissions to allow the Commissions themselves to first determine if a detainee is an unlawful enemy combatant.
It is hard to believe that with all the past failures and this latest breakdown, no one in Congress or the Bush administration is seriously talking about scrapping the Military Commissions in favor of civil or military trials conducted under established U.S. law.
The contrast in the last few days between the Guantanamo commissions and U.S. courts could not be more evident, as the arrest and indictment in federal court of the men accused of plotting to attack JFK airport stands against the missteps at Guantanamo. Anyone should be able to recognize what is working and what is not. If the Bush administration won’t, Congress should force the end of this charade at Guantanamo.