At the Guantánamo Bay military
commissions, the only constant -- aside from the desperate prisoners -- is
chaos. Attorneys come and go; rules are invalidated and reintroduced;
one prison closes and another opens, but pandemonium is ever-present.
Since their inception five years ago, the military commissions -- the
first war crimes tribunals conducted by the United States since Nuremberg -- have
careened from one crisis to the next. Yesterday, the commissions lurched
into another one.
Proceedings yesterday morning,
which I attended, involved Omar Khadr, a twenty-year-old Canadian citizen
who is charged with murder, attempted murder, conspiracy, material support
of terrorism, and espionage. The murder charges stem from an incident
that took place on July 27, 2002. On that day, U.S. special forces surrounded
a compound in Khost, Afghanistan, and demanded that the occupants surrender.
When they refused, U.S. forces attacked. To the U.S. government, the
key fact to know about Khadr is that during the battle, or sometime
in the battle's immediate aftermath, Khadr threw a grenade that killed
a U.S. soldier, Sgt. Christopher Speer. What goes unmentioned in the
government's indictment of Khadr is that the U.S. is attempting to
try Khadr for acts he is alleged to have committed when he was fifteen
years old. If the U.S. succeeds in this project, Khadr may be the first
person in modern history to have been subjected to a war crimes prosecution -- anywhere
in the world--for acts committed as a juvenile.
Though Khadr's case raises
serious human rights concerns, Khadr seems to have been abandoned by
the Canadian government. To his credit, Liberal Member of Parliament Michael Ignatieff called on the Canadian government
today to take up Khadr's cause. But Khadr needs all the help he can
get. Yesterday, that help came from a singularly unlikely source -- Col.
Peter Brownback, the judge presiding over Khadr's military commission.
In the past, Col. Brownback has seemed predisposed
towards the prosecution; today, however, he pressed the prosecution
about the commission's jurisdiction to try Khadr at all. His point
was simple: The military commission has the authority to try "unlawful
enemy combatants," but Khadr has never been found to be one.
The prosecution, of course,
tried to cobble together an argument to salvage its case. The military's
2004 determination that Khadr was an enemy combatant, the prosecution
argued, was essentially a determination that Khadr was an unlawful
enemy combatant. And in any event it should be sufficient (the prosecution
continued) that the President considers everyone associated with al-Qaida and the Taliban to be an unlawful enemy combatant; the President's
opinion ought to be given weight. But Col. Brownback rejected both of
these arguments and, in a ruling from the bench, held that the case
could not go forward. Yesterday afternoon, a second military judge reached
the same conclusion in the case of Salim Ahmed Hamdan, a Yemeni citizen
who is accused of having served as Osama bin Laden's personal chauffeur
and bodyguard. Hamdan's indictment, too, was dismissed.
Yesterday's rulings throw
the military tribunals once more into disarray. (Defense Department
spokespeople have been dismissing yesterday's rulings as "technical,"
but the rulings are likely to have far-reaching effects, not only in
the cases of Khadr and Hamdan but in other cases as well.) Rather than
attempt to prop up the ailing commissions, the Bush administration should
at long last retire them altogether. There, is in the end, nothing surprising
about the fact that the commissions have failed; as one of the military
defense counsel observed, no one should have thought it would be easy
to invent a new legal system. If they are propped up again, it
will not be long before the commissions reel into yet another crisis.
It need not be this way. Prisoners
who are suspected of having committed war crimes could be prosecuted
in courts martial -- under the Uniform Code of Military Justice -- or
in ordinary federal courts, and the ill-conceived military commissions
could be closed down for good. Rather than securing convictions, the
commissions have only damaged the U.S.'s image abroad and indefensibly
extended the detention of prisoners who have already been held without
trial for far too long. Guantánamo is a fiasco and an injustice. Yesterday's
rulings only underscore the many reasons why the administration should close
down the commissions once and for all.