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<font size=3><a href="http://www.counterpunch.org/" eudora="autourl">
http://www.counterpunch.org/<br><br>
</a></font><font face="Times New Roman, Times" size=4><b>June 7,
2007<br><br>
</font><h1><font face="Times New Roman, Times" size=5><b>No
"Unlawful" Enemy Combatants at Guantanamo<br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">The
Prison is the War
Crime</b></font></h1><font face="Times New Roman, Times" size=5>By
MARJORIE COHN<br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>n 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.<br><br>
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<i> Hamdan v. Rumsfeld</i> 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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
On Monday, much to Bush's dismay, two different military judges dismissed
both Hamdan's and Khadr's cases on procedural grounds.<br><br>
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.<br><br>
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-<i>Hamdan</i> military commissions, Bush's legal
eagles didn't notice this discrepancy. That is why the charges were
dismissed.<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
<b>Marjorie Cohn</b> is a professor at Thomas Jefferson School of Law and
president of the National Lawyers Guild. Her new book,<i> Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law</i>, will be
published in July. <br><br>
<br><br>
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