Q & A on recent decisions in the military commissions:

In preparation for today's broadcast of The Story. Candace prepared a run-down of the possible implications of the recent orders from military judges, dismissing all charges against Salim Hamdan and Omar Khadr.
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Q: Are the military decisions a serious set-back for Bush or just a question of semantic definitions?

A: This is not just semantics…. but it is very confusing. The Republican-controlled congress passed the military commissions act (MCA) in October 2006. The MCA abolished the great writ of Habeas Corpus (a law that allowed prisoners to be brought before a court and told what they were accused of doing). That (Republican-controlled) congress claimed that the MCA was an adequate substitute for Habeas Corpus and that the MCA would provide a process for “the worst of the worst” that were being held at Guantánamo. This "alternative process" was a military commission hearing.

The MCA was also designed to give a rubber stamp to the horrendous treatment of the prisoners by clarifying that the men were not entitled to prisoner of war status. There are two types of enemy combatants: lawful enemy combatants (POWs) are entitled to all of the protections of the Geneva Conventions, in particular the protections of the Third Geneva Convention which lays out the treatment of prisoners of war. Unlawful enemy combatants are entitled only to the protections of Common Article III. Given the choice, you would prefer the better POW treatment. The MCA, by definition, only applies to unlawful enemy combatants. However, none of the men at Guantánamo have ever been found to be unlawful enemy combatants. The combatant status review tribunals (CSRTs) that make this determination have only designated GTMO prisoners as “enemy” combatants. (Incidentally, many Guantánamo inmates, including one of my clients, were actually found to be non-enemy combatants until the government rigged do-over tribunals.) An enemy combatant is considered the same as a lawful enemy combatant. Therefore this law that supposedly stripped Habeas Corpus from the prisoners at Guantánamo cannot apply to these men because none of them was ever found to be an “unlawful” enemy.

Additionally (and significantly), the language of the Hamdan military judge suggests that Mr. Hamdan, based on the facts before him, could never be an “unlawful enemy combatant”…. That seems to be a hint to the government not to embarrass itself any further....

Given the military decisions yesterday and the treatment the detainees have received at Guantánamo up to this point, the U.S. is in clear breach of the Geneva Conventions with respect to all of these detainees. That is not a good situation for our country to be in…. especially in a time of war…. If we are breaching the Geneva conventions (which, of course, we are) then what can we expect for our own troops?


Q: How might it affect your clients?

A. It might mean that my clients can finally get before a judge in a Habeas Corpus action. The government might be forced to explain why my clients are being held and my clients might have a chance to defend themselves. Only time will tell… we still have to figure out if our judiciary is brave and independent enough to tackle these issues…so far they haven’t been but now they have new ammunition, should they care to use it.


Q: What do the decisions really mean?

A: What this really means is that the government’s attempt to insulate itself from war crimes tribunals did not work. They passed the MCA in an attempt to justify its handling of these men at Guantánamo, they tried to take away the rights of the men to challenge their incarceration and they tried to say that they were not even entitled to the minimum protections of Common Article III. But the law that they passed to try to protect themselves against claims of war crimes does not, in fact, protect them because this law does not apply to these men. It means that these men should have, at the very least, been treated as prisoners of war… I also believe that it means that Habeas Corpus was not legally stripped for the men of Guantánamo because there was no adequate substitute put in the place of Habeas Corpus.

Q: Why should we care?

A: We used to be a nation of laws… we were proud of our judicial system and proud of the fact that we followed the letter of the law. We asked other countries to follow our example and we chided those countries that did not… often we sanctioned those countries that refused to follow what we claimed were “universal laws” and asked others to sanction those countries as well. But after 9/11 we as a nation decided that we are above the law and that in order to protect ourselves we could disregard the law. That led us to Guantánamo (and other atrocities) which in turn led us to the Military Commissions Act. The MCA was an attempt to codify into law many of the illegal actions committed against the men at Guantánamo and to keep them out of a court of law…. If we care about justice we should care about these two military decisions that recognized that the MCA does not apply to the men at Guantánamo …. We should care about the great writ of Habeas Corpus and demand that it be fully reinstated. If not, we have no claim on being a great nation of laws… we become just another banana republic.


Q: What role might the Supreme Court play in the future of Guantánamo litigation given its decision in April to not rule on the constitutionality of the MCA?

A: The Military Commissions Act was an illegal law from the day it was drafted. It retroactively took away rights that existed when these men filed their law suits in federal court. The lawsuits were filed as Habeas Corpus actions and the lawsuits asked the court to force the government to explain why the men are being held. Even Sen. Specter who voted for the MCA said the law was unconstitutional and that he expected the Supreme Court would find it so. (How senators can justify voting for a law that they know is clearly unconstitutional is a question that the voters of Pennsylvania and other states will have to deal with…) However when the issue of the constitutionality of the MCA came to the Supreme Court in April of this year, the court said it would not hear the case, at this time, because it needed more time to see if the MCA could work and if in fact the MCA was an adequate substitute for Habeas Corpus. It was a bitter disappointment to the men at Guantánamo and their attorneys… we were forced to follow a law that was clearly unconstitutional, for some unknown amount of time in order to show the Supreme Court that this law could not work.

Then yesterday, out of the blue, the Court asked the government to explain “why” the Court shouldn’t hear the issue now…. So I guess they have been thinking about this and decided maybe they were wrong to make these men wait another year or two before deciding that the law is unconstitutional….
That is our hope anyway.