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When Wrong is Just Wrong...

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

And, of course, the White House criticized the independent decisions yesterday to dismiss all charges against the two Guantanamo detainees, Omar Khadr and Salim Hamdan. The Post has this write up, and concludes with this bit of “analysis” from a former Reagan/Bush I Justice official. Yes, those are scare quotes. This is just wrong:

David Rivkin, a member of the Justice Department under Presidents Ronald Reagan and George H.W. Bush, said yesterday that Brownback could have continued with the case by determining that Khadr is an unlawful combatant. After Khadr’s CSRT hearing on Sept. 7, 2004, officers wrote that he is an “enemy combatant” who supported the Taliban and al-Qaeda, but they only had the option of calling him an “enemy combatant” or “no longer an enemy combatant.”The CSRTs found that 520 Guantanamo Bay detainees were enemy combatants and 38 were no longer enemy combatants. There are currently 380 detainees at the prison, and prosecutors are hoping to bring about 80 of them before military commissions.Rivkin said that anyone considered an enemy combatant is also unlawful. “To give everyone a new CSRT just to label them unlawful would be silly,” he said. “They should go on appeal and get it thrown out.”

As I explained earlier today, the MCA draws a deep legal line in the sand between lawful and unlawful enemy combatants. That’s the whole point of the law. It’s an attempt—albeit a fatally flawed one—to set up a system to try detainees held in the “global war on terrorism” (itself a total misnomer) who don’t abide by the laws of war. To give all these detainees a new CSRT would indeed be “silly” but not for the reason Mr. Rivkin gives.On the contrary, a new round of CSRTs would be completely futile in providing any independent, adequate, meaningful review of the legal and factual grounds for the detainees’ detentions. It would be replacing one rubber stamp with another rubber stamp. The only non-“silly” response to this development is something like the Harkin bill.

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