In 2002, Donald Rumsfeld famously called the detainees at GuantÃ¡namo “the worst of the worst.” General Richard B. Myers, former chairman of the Joint Chiefs of Staff, warned they were “very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down.” These claims were designed to justify locking up hundreds of men and boys for years in small cages like animals.
George W. Bush lost no time establishing military commissions to try the very “worst of the worst” for war crimes. But four and a half years later, the Supreme Court decided in Hamdan v. Rumsfeld that those commissions violated the Uniform Code of Military Justice and the Geneva Conventions. So Bush dusted them off, made a few changes, and rammed his new improved military commissions through the Republican Congress last fall.
Only three detainees have been brought before the new commissions. One would expect the people Bush & Co. singled out for war crimes prosecutions would be high-level al-Qaeda leaders. But they weren’t. The first was David Hicks, who was evidently not so dangerous. The
Salem Ahmed Hamdan, a Yemeni who used to be Osama bin Laden’s chauffeur, was the second. Hamdan, whose case had been overturned by the Supreme Court, was finally brought before a military commission Monday for arraignment on charges of conspiracy and material support for terrorism.
The third defendant was Omar Khadr, a Canadian citizen, who appeared for arraignment the same day as Hamdan. Khadr was 15 years old when he arrived at GuantÃ¡namo. He faced charges of conspiracy, murder, attempted murder, spying, and supporting terrorism.
On Monday, much to Bush’s dismay, two different military judges dismissed both Hamdan’s and Khadr’s cases on procedural grounds.
The Military Commissions Act that Congress passed last year says the military commissions have jurisdiction to try offenses committed by alien unlawful enemy combatants. Unlawful enemy combatants are defined as (1) people who have engaged in hostilities or purposefully and materially supported hostilities against the
But there are no “unlawful” enemy combatants at GuantÃ¡namo. There are only men who have been determined to be “enemy combatants” by the CSRTs. The Act declares that military commissions “shall not have jurisdiction over lawful enemy combatants.” In its haste to launch post-Hamdan military commissions, Bush’s legal eagles didn’t notice this discrepancy. That is why the charges were dismissed.
The Bush administration may try to fix the procedural problem and retry Khadr and Hamdan. But regardless of whether GuantÃ¡namo detainees are lawful or unlawful enemy combatants, the Bush administration’s treatment of them violates the Geneva Conventions. Lawful enemy combatants are protected against inhumane treatment by the Third Geneva Convention on prisoners of war. Unlawful enemy combatants are protected against inhumane treatment by Common Article Three.
Omar Khadr was captured in
Khadr cried frequently. He has nightmares, sweats and hyperventilates, and is hypervigilant, hearing sounds that he can’t identify. When Khadr’s lawyer saw him for the first time in 2004, he thought, “He’s just a little kid.”
Why was Khadr treated this way? He comes from a family allegedly active in al-Qaeda. His charges stem from an incident where the
According to Donald Rehkopf, Jr., co-chair of the National Association of Criminal Defense Lawyers Military Law Committee, “The government has steadfastly refused to allow hearings on this alleged [unlawful enemy combatant] status because there are so many prisoners at GTMO that were not even combatants, much less ‘unlawful’ ones. Khadr is in an unusual situation because he has a viable ‘self-defense’ claim – we attacked the compound that he and his family were living in, and the fact that he was only 15 at the time.”
If Khadr were a
The Military Commissions Act, which denies basic due process protections, including the right to habeas corpus, is a disgrace. But an even bigger disgrace is the concentration camp the
Marjorie Cohn is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the