[Ppnews] The Prison is the War Crime

[Political Prisoner News]

http://www.counterpunch.org/

June 7, 2007


No "Unlawful" Enemy Combatants at Guantanamo


The Prison is the War Crime

By MARJORIE COHN

In 2002, Donald Rumsfeld famously called the 
detainees at Guantánamo "the worst of the worst." 
General Richard B. Myers, former chairman of the 
Joint Chiefs of Staff, warned they were "very 
dangerous people who would gnaw hydraulic lines 
in the back of a C-17 to bring it down." These 
claims were designed to justify locking up 
hundreds of men and boys for years in small cages like animals.

George W. Bush lost no time establishing military 
commissions to try the very "worst of the worst" 
for war crimes. But four and a half years later, 
the Supreme Court decided in Hamdan v. Rumsfeld 
that those commissions violated the Uniform Code 
of Military Justice and the Geneva Conventions. 
So Bush dusted them off, made a few changes, and 
rammed his new improved military commissions 
through the Republican Congress last fall.

Only three detainees have been brought before the 
new commissions. One would expect the people Bush 
& Co. singled out for war crimes prosecutions 
would be high-level al-Qaeda leaders. But they 
weren't. The first was David Hicks, who was 
evidently not so dangerous. The U.S. military 
made a deal that garnered Hicks a misdemeanor 
sentence and sent him back to Australia.

Salem Ahmed Hamdan, a Yemeni who used to be Osama 
bin Laden's chauffeur, was the second. Hamdan, 
whose case had been overturned by the Supreme 
Court, was finally brought before a military 
commission Monday for arraignment on charges of 
conspiracy and material support for terrorism.

The third defendant was Omar Khadr, a Canadian 
citizen, who appeared for arraignment the same 
day as Hamdan. Khadr was 15 years old when he 
arrived at Guantánamo. He faced charges of 
conspiracy, murder, attempted murder, spying, and supporting terrorism.

On Monday, much to Bush's dismay, two different 
military judges dismissed both Hamdan's and 
Khadr's cases on procedural grounds.

The Military Commissions Act that Congress passed 
last year says the military commissions have 
jurisdiction to try offenses committed by alien 
unlawful enemy combatants. Unlawful enemy 
combatants are defined as (1) people who have 
engaged in hostilities or purposefully and 
materially supported hostilities against the 
United States or its allies; or (2) people who 
have been determined to be unlawful enemy 
combatants by a Combatant Status Review Tribunal 
(CSRT) or another competent tribunal. The Act 
says that a determination of unlawful enemy 
combatant status by a CSRT or another competent tribunal is dispositive.

But there are no "unlawful" enemy combatants at 
Guantánamo. There are only men who have been 
determined to be "enemy combatants" by the CSRTs. 
The Act declares that military commissions "shall 
not have jurisdiction over lawful enemy 
combatants." In its haste to launch post-Hamdan 
military commissions, Bush's legal eagles didn't 
notice this discrepancy. That is why the charges were dismissed.

The Bush administration may try to fix the 
procedural problem and retry Khadr and Hamdan. 
But regardless of whether Guantánamo detainees 
are lawful or unlawful enemy combatants, the Bush 
administration's treatment of them violates the 
Geneva Conventions. Lawful enemy combatants are 
protected against inhumane treatment by the Third 
Geneva Convention on prisoners of war. Unlawful 
enemy combatants are protected against inhumane 
treatment by Common Article Three.

Omar Khadr was captured in Afghanistan and 
brought to Guantánamo when he was 15 years old. 
In both places, he has been repeatedly tortured 
and subjected to inhumane treatment. At Bagram 
Air Base, Khadr was denied pain medication for 
his serious head and eye shrapnel wounds. At 
Guantánamo, his hands and feet were shackled 
together, he was bolted to the floor and left 
there for hours at a time. After he urinated on 
himself and on the floor, U.S. military guards 
mopped the floor with his skinny little body. 
Khadr was beaten in the head, dogs lunged at him, 
and he was threatened with rape and the removal of his body parts.

Khadr cried frequently. He has nightmares, sweats 
and hyperventilates, and is hypervigilant, 
hearing sounds that he can't identify. When 
Khadr's lawyer saw him for the first time in 
2004, he thought, "He's just a little kid."

Why was Khadr treated this way? He comes from a 
family allegedly active in al-Qaeda. His charges 
stem from an incident where the U.S. sent Afghans 
into a compound where Khadr and others were 
located. The people inside the compound killed 
the Afghans and began firing at the U.S. 
soldiers. The Americans dropped two 500-pound 
bombs on the compound, killing everyone inside 
except Khadr. After Khadr threw a hand grenade 
which killed an American, the soldiers shot 
Khadr, blinding and seriously wounding him. Khadr 
begged them in English to finish him off. He was 
then taken to Baghram and later to Guantánamo.

According to Donald Rehkopf, Jr., co-chair of the 
National Association of Criminal Defense Lawyers 
Military Law Committee, "The government has 
steadfastly refused to allow hearings on this 
alleged [unlawful enemy combatant] status because 
there are so many prisoners at GTMO that were not 
even combatants, much less 'unlawful' ones. Khadr 
is in an unusual situation because he has a 
viable 'self-defense' claim - we attacked the 
compound that he and his family were living in, 
and the fact that he was only 15 at the time."

If Khadr were a U.S. citizen, he would not even 
be subject to trial by court-martial because of 
his age. When the Supreme Court ruled in 2005 
that children under 18 at the time of their 
crimes could not be executed, it said that youths 
display a "lack of maturity and an underdeveloped 
sense of responsibility" that "often results in 
impetuous and ill-considered actions and 
decisions." A juvenile, the Court found, is more 
vulnerable or susceptible to negative influences 
and his character is not as well-formed as that 
of an adult. "From a moral standpoint," Justice 
Kennedy wrote for the majority, "it would be 
misguided to equate the failings of a minor with 
those of an adult, for a greater possibility 
exists that a minor's character deficiencies will 
be reformed." The Bush administration's treatment 
of Omar Khadr flies in the face of the Court's reasoning.

The United States may be able to retry Khadr and 
Hamdan. They have a few days to file an appeal. 
But the Court of Military Commissions Review 
hasn't even been established yet, so it's unclear 
where the appeals would be brought.

The Military Commissions Act, which denies basic 
due process protections, including the right to 
habeas corpus, is a disgrace. But an even bigger 
disgrace is the concentration camp the United 
States maintains at Guantánamo Bay, Cuba. The Act 
should be repealed and the Guantánamo prison should be shut down immediately.

Marjorie Cohn is a professor at Thomas Jefferson 
School of Law and president of the National 
Lawyers Guild. Her new book, Cowboy Republic: Six 
Ways the Bush Gang Has Defied the Law, will be published in July.




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