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Criminal Trials at Guantanamo (Almost)

Guantanamo is the only place on earth where it may be better to be charged with a crime than not.
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Omar Khadr, one of the two Guantanamo detainees charged with crimes, was to be tried in a "military commission" on Monday. Instead, an Army judge ruled that the commission lacks jurisdiction over Khadr in light of the classification that Guantanamo authorities applied to Khadr years ago. Of course, this doesn't mean that Khadr will go home. Rather, he will simply rot at Guantanamo like the 385 other uncharged detainees there. It also means that he won't be able to follow the example of David Hicks, whose recent military commission was his ticket home.

You see, Guantanamo is the only place on earth where it may be better to be charged with a crime than not. That will sound strange to all except those who have studied Guantanamo and know it's place that is short on law and common sense but full of cruel irony.

Guantanamo is where people are held as "enemy combatants" even if they aren't accused of taking part in combat. It's where iguanas -- which roam the base -- are protected by federal law, but the detainees aren't. It's the place from which we've released 400 detainees, even though all detainees were supposedly the "worst of the worst." It's a place that has united such strange bed fellows as Human Rights Watch and the Secretary of Defense in calling for its closure.

As for Hicks, nobody would say he had it easy. He was held for years and charged with a crime that doesn't exist under the laws of war -- this isn't exactly Goering at Nuremberg. Nonetheless, he was allowed to plead guilty and just went home to Australia to serve the remainder of a nine-month sentence.

Many of the other detainees would love to have to same deal, but the administration concedes that the vast majority of them will never be charged. Rather, the administration asserts it can hold these men until the War on Terror ends (i.e., forever) even though many are not even accused of taking any action against the United States.

Presently, most detainees are held in solid-wall cells where they spend 22-24 hours a day alone. This indefinite isolation has led to suicide attempts and hunger strikes. Interestingly, David Hicks, as a charged detainee, was allowed family visits and phone calls, and he even took a correspondence course -- yet more irony.

Attorneys for the detainees tried to bring sense to this situation by filing petitions for habeas corpus. At its core, habeas means that if the government intends to imprison someone indefinitely, it must present evidence against the person in a court hearing. This is what the detainees seek: not full trials, but simple hearings to see and challenge any evidence against them.

In June 2004, the Supreme Court ruled that the detainees were entitled to bring habeas cases. In response, the government set up military hearings at Guantanamo in which the detainees did not have lawyers and were not allowed to see the evidence against them, which could include evidence derived from torture. Not surprisingly, the overwhelming majority of detainees were found to be "enemy combatants," including some who were initially exonerated and then put through the process again. The detainees' lawyers argued that these proceedings were hardly fair hearings.

What did Congress do as the courts were considering the issue? It passed the Military Commissions Act of 2006, which required the dismissal of all habeas cases brought by detainees. According to the government, detainees now can challenge in court only whether the military hearings that found them to be "enemy combatants" followed their own procedures in applying the label. As such, the detainees are not allowed to contest whether they are actually "enemy combatants."

Plainly, the situation at Guantanamo is in desperate need of repair. The first step would be for Congress to repeal the Military Commissions Act and allow detainees fair hearings through habeas. If Congress does nothing, Guantanamo will continue to be the land of cruel irony where a man who pleads guilty goes home to Australia, while hundreds of others who are not even charged just rot.

Joshua Colangelo-Bryan is a New York-based attorney with Dorsey & Whitey, a firm representing several Guantanamo detainees.