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Government Fails MCA 101

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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June 5, 2007

Okay, so, not only did a military commission drop the charges against Omar Khadr, the Canadian who was 15 when he allegedly threw a grenade during a firefight that killed a Special Forces medic, but, in a completely separate proceeding, the presiding official dismissed all charges against Salim Ahmed Hamdan, Osama Bin Laden’s alleged driver. Here’s the Glaberson Times coverage.Obviously, the Bush administration is playing down the rebuke, while military defense attorneys for the detainees are of one voice in declaring the development clear evidence of the bankruptcy of the system as a whole. One can easily guess where I stand. But, there’s a particularly interesting legal issue here, which starkly highlights the fatal, elemental fissures in the legal foundation of the military commissions.So, bear with me as I walk through this.First, a little background. The Military Commissions Act was struggling to deal with a particularly prickly legal question. That is, under the traditional laws of war, how do you deal with an al Qaeda operative? In “normal” war, fighters are usually privileged in the use of force. That is, they can kill without worrying about being charged in a regular court with murder. But, if they are privileged, they also can be held, as a tactical matter, until the end of hostilities to keep them from returning to battle.Now, when you get a belligerent like an al Qaeda operative (or, in the case of Khadr, more like an irregular militia member), things get more complicated. At the risk of oversimplification, the question becomes, what privileges do you give to a fighter who does not follow the traditional “laws of war” (like wearing a clearly discernable uniform, separating himself or herself from civilian populations, abiding by a chain of command, etc., etc.)?So, the MCA tried to set up a dichotomy between “unlawful” enemy combatants and just regular enemy combatants. I know the last thing you want to do today is read statutory language, but check out the relevant definitions from Section 948a of the MCA (immortalized in the United States Code at title 10, section 948a).

(1) Unlawful enemy combatant. (A) The term “unlawful enemy combatant” means– (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006 [enacted Oct. 17, 2006], has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. (B) Co-belligerent. In this paragraph, the term “co-belligerent”, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy. (2) Lawful enemy combatant. The term “lawful enemy combatant” means a person who is– (A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

So, the commissions did something pretty simple yesterday. They said that the Combatant Status Review Tribunals, the CSRTs, had only found Khadr and Hamdan to be “enemy combatants,” meaning they could be held until the cessation of hostilities in the “war on terror” (which is a whole other ball of wax), but that they could not be “tried” via military commission for crimes as “unlawful enemy combatants.”The government, for its part, weakly argues that the CSRTs really meant to designate these two as unlawful enemy combatants, and that the whole thing is basically a semantic kabuki dance. But, as you can see from the quoted statute above, Congress clearly intended to distinguish between the two categories of detainee.Senator Arlen Specter basically said as much in response to the government’s claims that this was but a minor quibble over language.From the Glaberson article:

But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.In an interview, Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, said after the first of the two rulings Monday that the decision raised significant issues and could prompt Congress to re-evaluate the legal rights of detainees, including Congress’s decision last year to revoke the rights of detainees to file habeas corpus suits to challenge their detentions.“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantánamo milieu,” Mr. Specter said, adding, “There’s just a sense of too many shortcuts in the whole process.”

At the very least, yesterday’s dismissals illustrate two things. First, and obviously, the whole Rube Goldberg contraption is broken. Justice in the MCA framework isn’t elusive; it’s totally illusory. But, second, notice how the same thing happened in two separate tribunals, presided over by two separate military officers, both of whom basically told the government to go and do something to itself that I can’t say on live television.What’s the takeaway from that last insight? Military lawyers don’t like to cut corners, and military officers, like they always say in the movies, follow the laws and the policies of the government without getting into the politics. That’s what we get from civilian control, and from instilling a sense of apoliticism among our officer corps. And that’s a good thing. That’s just another check and balance against executive caprice. Good for us.Unfortunately, both Khadr and Hamdan will remain detained until the government sorts this whole thing out. That means that if they’re guilty, they’ve escaped justice. But, if innocent, we’re continuing to lock up innocent men. Not only that, but even if these guys are acquitted by a military commission, we can still hold them indefinitely as “regular” enemy combatants (that is, until the end of the “global war on terror,” whatever that means).Hope that’s all food for thought.