WASHINGTON: The legal limbo facing Guantanamo Bay prisoners has deepened after two surprise judicial rulings this week, sparking new calls to tear down the notorious “war on terror” detention camp.
Legal experts said that Monday’s rulings by military judges have set back the US government’s quest to prosecute “high-value” detainees such as alleged 9/11 mastermind Khaled Sheikh Mohammed.
But the administration of President George W. Bush insists that military commissions remain an appropriate way to try some of the remaining 380 detainees rounded up after the Sept 11 attacks of 2001.
The judges found that Omar Ahmed Khadr, a young Canadian Al Qaeda fighter, and Osama bin Laden’s ex-driver Salim Ahmed Hamdan had not been classified by US tribunals as “unlawful enemy combatants”. The judges ruled that therefore the two men could not be tried by military tribunals set up under the Military Commissions Act pushed through the Republican-controlled Congress last September.
The government is examining its options but says the rulings do not represent the end of the Guantanamo Bay tribunals, which had to be revamped after the Supreme Court ruled in Hamdan’s favour in a landmark case 12 months ago.
“I don’t think we’re back to square one,” US State Department legal adviser John Bellinger said on Thursday on a visit to Brussels. He called Monday’s rulings “a technical, legal obstacle that will require further work”. But Hamdan’s chief civilian counsel, Seattle-based Joseph McMillan, accused the government of pushing Guantanamo detainees deeper into a legal black hole by “rewriting the rules as we proceed”. “Terrorist acts are criminal acts and they should be prosecuted as such in civilian courts,” he said.
“But to prosecute them as war crimes opens us up to the unacceptable situation where people are held as enemy combatants under the aegis of a war on terror that has no beginning and no end.” The Guantanamo tribunal rulings sparked new calls inside the United States to close the prison.
In an editorial on Wednesday, the New York Times said the naval facility, perched on a picturesque bay in southeast Cuba, was a “national disgrace”, and called the special detention system “fundamentally corrupt”. And Amnesty International USA observer Jumana Musa said it was damning that government-appointed military judges had struck down the charges on the basis of a law that was hustled through Congress with the White House’s blessing.
“By exposing the serious deficiencies of its own framework in open court, the United States has created the most compelling argument for ending the military commissions and closing Guantanamo, once and for all,” she said.
Defence Secretary Robert Gates, while supporting calls to shut down the detention centre in time, says “hard-core” prisoners at Guantanamo should never go free.
“The reality is there are people at Guantanamo we would like to turn back to their home countries, and their home countries won’t take them,” he told Congress in March.
Human rights observers say the brutalising effect of the prisoners’ legal limbo was evident in the glazed-over appearance of Khadr in court, even when the charges were dropped.Hamdan, however, appeared lively and engaged despite his Arabic interpreter’s failure to translate much of the proceedings.
The government’s options for appeal of Monday’s rulings are constrained by the fact that a higher court envisaged in last year’s Military Commissions Act has yet to be set up.
Another time-consuming option is to convene a new round of “combatant status review tribunals” to ensure that Guantanamo detainees are now labelled “unlawful” as required by the commissions act to bring them to trial.
McMillan said it was also possible that the government could file a motion next week asking the judges to reconsider their rulings regarding Khadr and Hamdan.
David Rivkin, a Washington lawyer in previous Republican administrations, said the two defendants were in any case “small fry” for bigger judicial catches like Khaled Sheikh Mohammed.
The US government would have to reconsider its approach, he said.—AFP
