“A lawless process”: attempts to revive Guantánamo’s reviled Military Commissions opposed by military lawyers


On Friday, in a second legal development dealing with Guantánamo (see here for the first), the administration attempted to revive its beleaguered –- and much reviled –- system of Military Commissions. Just as the tribunals at Guantánamo –- the Combatant Status Review Tribunals –- have been condemned for providing a pale and unjust imitation of habeas rights, the four-year history of the Commissions has been rocked by judicial setbacks and abortive, farcical proceedings, with a widespread belief that, like a mirror of the tribunals, the Commissions –- established to try those regarded as the most dangerous detainees in Guantánamo in a brand-new system that spurns both military law and civilian law as enacted on the mainland –- are another second-tier judicial system, as unjust and unprincipled as the CSRTs, and designed, like the tribunals, to secure a guilty verdict at all costs, and to prevent all mention of torture by US forces in a similar manner.

First condemned by the Supreme Court in June 2006, which ruled that they were illegal under US law and the Geneva Conventions, the Commissions were revived late last year when the Senate passed the criminally negligent Military Commissions Act, but they came unstuck as soon as they were reinstated, two months ago, when the government-appointed military judges in two cases –- that of child soldier Omar Khadr, and the Yemeni Salim Hamdan, who worked as a driver for Osama bin Laden –- closed down the proceedings because the MCA had authorized them to try “illegal enemy combatants,” whereas the CSRT process, which made detainees eligible for trial by Military Commission, had ruled only that they were “enemy combatants.”

Despite attempts by the government to dismiss the distinction as a mere technicality, the judges –- Army Colonel Peter Brownback (for Khadr) and Navy Captain Keith Allred (for Hamdan) –- refused to back down, and as the administration, in a fit of pique, declared that it would appeal the decisions, the stunning ineptitude of its renegade approach to the law –- a mixture of Stalinism and cowboy justice –- was highlighted as the botched DIY job that it really is when it was revealed that the appeal court in which the government would file its petulant complaints had not yet been established.

This darkly risible oversight has now been remedied. As the special appeals court convened on Friday, in what the New York Times described as “a borrowed courtroom half a block from the White House,” retired Army Colonel Francis Gilligan, one of the military prosecutors, declared, “We’re attempting to start the trials,” although he added, a little sheepishly, “We’ve sort of had a judicial stall.” This, of course, was something of an understatement, and it remains to be seen whether the newly established and grandly titled “United States Court of Military Commission Review” can overturn the objections expressed by the military judges in June.

The session, convened to deal, in the first instance, with Omar Khadr’s case, did not get off to a good start. As soon as it began, defense lawyers challenged the very legitimacy of the court, “arguing,” as the Times put it, “that it was improperly constituted because its members were appointed not by the defense secretary, as the law calls for, but by a deputy secretary.” Ignoring this inconvenient truth, Gilligan said that the court should be able to accept that Khadr’s tribunal effectively declared him an unlawful combatant, “in part because al-Qaeda does not follow the rules of war,” adding that, even if the judges rejected that argument, the prosecution “should be permitted to present proof to a trial judge that Mr. Khadr was in fact an unlawful combatant and could therefore be prosecuted before a military commission.”

The judges did not appear to be convinced. Two of the three-man panel “expressed skepticism of the prosecution’s contention that the holding of prior status reviews could be read as having declared detainees unlawful combatants” –- as Brownback and Allred had argued when they had dismissed the cases in June –- and although all three judges indicated that they were considering whether the trial judges themselves could decide whether detainees were unlawful combatants and were therefore eligible for prosecution by Military Commission, it’s uncertain that Brownback and Allred will be convinced.

The administration also faces stiff opposition from the military defense lawyers who, as in the case of Lt. Cmdr. Charles Swift, who represented Hamdan until he was turned down for promotion and forced to leave the military last month, are prepared to sacrifice their careers to maintain opposition to what they regard as a system designed to justify torture and to break the law. Swift, it transpires, was not so easily dismissed, and will continue to lead Hamdan’s team as a civilian lawyer, from his new post at Emory University School of Law in Atlanta, and his successor, Army Major Thomas Roughneen, has already expressed his opposition to the system, explaining that he is “confident” that it will “collapse under high court scrutiny,” and adding, “It’s like the Titanic. You know someday the ship is going to sink. God almighty, let’s get there already”.

One of their number, Lt. Cmdr. William C. Kuebler, who recently described the Commissions as rigged, ridiculous, unjust, farcical, and a sham, and who added, “I think things have been done to people that under any definition except this administration’s very narrow one would be torture,” has already indicated that he remains implacably opposed to any attempt to revive the Commissions, telling journalists after the hearing, “This is about the credibility of the United States and the perception around the world of our commitment to the rule of law,” Like a gauntlet-hurling hero of old, he concluded, “This is a lawless process,” and I look forward to further legal fireworks as the limping administration attempts –- unsuccessfully, I hope –- to bully its way to further injustices.

For more on the Military Commissions, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.

A combination of this article and “411-0: opposition to Bush’s Guantánamo policy grows” was published in the print edition of CounterPunch, Vol. 14, No. 14, August 2007.

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  1. University Update - White House - “A lawless process”: attempts to revive Guantánamo’s reviled Military Commissions opposed by military lawyers says...

    […] Mine “A lawless process”: attempts to revive Guantánamo’s reviled Military Commissions opposed by … This Summary is from an article posted at Andy Worthington on Wednesday, August 29, 2007 On […]

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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