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The Latest Guantanamo Embarrassment
[Opinion] Court refuses to try Canadian and Yemeni men as 'unlawful' combatants
Alan Mota (al0021)     Print Article 
Published 2007-06-07 10:25 (KST)   
Guantanamo prison has been an embarrassment to the U.S. government for a while, but the Bush administration stayed put and refused to shut down the detainment center, ignoring the many reports of human rights and prisoner rights violations that helped turn the entire world against it.

As time passed and the Iraq war worsened, movies and books were released on the matter, leaders (governmental or not) around the world asked President Bush to reconsider keeping Guantanamo active and the pressure from inside, by the American people, grew.

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None of those things made the Bush administration suffer a legal setback such as the one they did on June 5. In the infamous military court where the Guantanamo detainees are judged before being jailed in the army base -- a court highly suspicious of bias against the supposed terrorists -- Peter Brownback, a military judge dismissed charges against two detainees.

He said that the defendants, Omar Khadr (from Canada) and Salim Ahmed Hamdan (from Yemen), weren't "unlawful" combatants, they were lawful. This makes a big difference to judicial procedures, casting a new light on the capacity of the U.S. army to detain suspects the way they used to before the new rules on detainment were changed recently, by order from the Supreme Court.

Before the changes in the procedure, jailing a Guantanamo detainee on doubtful charges (sometimes, charges weren't even necessary) for an undetermined time was for the army officials what creating a new email account is to normal people: Fill in some data, press charges and pronto. The result was what the world saw on movies such as "The Road to Guantanamo" or read in the many news articles that were published since the abuses occurring in the prison came to light.

Under the new system, a suspect must be deemed an "unlawful enemy combatant," instead of just an enemy combatant, or else there's no jurisdiction in a military court -- an enemy combatant, under the Geneva convention, must receive the same treatment as the soldiers from the country that captured him. This guarantees that the U.S. government once again respects the convention, unlike before.

Primarily, it doesn't look like that big of a change. But deep down, to prove that a suspect is indeed an unlawful enemy combatant (and convince the judge of that) is much more complicated than just throwing him in court as a standard "enemy" and judging him for it. Moreover, with the increasingly bad news that comes from the American war on terror every day and the increasing pressure on the army by the Congress, the people and the international community, it also becomes less likely than before for a military judge to jeopardize his reputation over cases that would reportedly break international laws.

The bottom line is that from now on (especially considering that this case constitutes a precedent), it will become much harder for the U.S. army to bring more suspects to the Cuban base.

This is good news for everyone but the White House. With much of the mass media already announcing the "embarrassment" and "defeat" of the government on its own grounds, the Bush administration rushed to say that it disagrees with the military court ruling, and denied that the event constituted another setback for government (following the unfavorable Supreme Court ruling changing the trial rules). White House spokesman Tony Fratto said that "in no way does this decision affect the appropriateness of the military commission system." Yes, it does.

Even before the legal consequences of the court ruling begin to surface, the media coverage alone is enough to magnify the event. In a moment when the president faces an all-time low approval rate (a May 2007 poll rated him at 28 percent), this is definitely the last thing he needed. Even the neo-conservatives and the religious right, Bush's most loyal defenders, might get suspicious of their hero when the U.S. army itself challenges him. We must keep in mind that this time, the hit didn't come from an international NGO or a liberal think tank, or the Congress; it came from Bush's own ranks, from the ones that go to war in the first place, and always counted on his support (and the support of his voters), even after the Abu Ghraib scandal and the first accounts of abuses in Guantanamo.

The Pentagon could be considered one of the few places where Bush was still viewed positively, but now, even though it can't be said that they're against him, this case shows that they're willing to challenge his policies, no longer being afraid of the political consequences of it.

Another tendency that this case shows, one that will only be confirmed if other cases of "insubordination" to Bush appear, is that some people in the army might be considering the fact that Bush will no longer be in office in two years, and that there might be a lot of investigating when that happens, if not a witch hunt, to bring up the dirt that is being kept under the rug.

With this in mind, the military might change their mindset to think about their careers and refrain before committing any abuses that are likely to turn into liabilities for them in the near future. From now on, the Bush administration might have a harder time imposing its views on the army.

However, the scenario for the two dismissed detainees is not as bright as it may look. The fact that the charges were dismissed doesn't free the prisoners, and they're still locked up in Guantanamo -- it will definitely help them, but the dismissal is not by itself conclusive. And before defenders of human rights all around the world could chant victory, the U.S. government is already working its way through this judicial boondoggle; starting with Brownback, who is said to have left an open window for a retrial, as long as the Department of Defense manages to install a new judicial mechanism which is already in the works, called "combat status review tribunals."

In this pre-trial tribunal, the status of the combatants would be decided by the Department before sending them to court. Other officials are also trying to put down the fire: Jeffrey Gordon, a navy commander, defended the military courts the way they were, saying that "the concept was implicit that all the Guantanamo detainees who were designated as 'enemy combatants' ... were in fact unlawful."

Yet, this setback still harms the Pentagon plans for Guantanamo -- to try as many prisoners as possible, in order to guarantee their legal status of unlawful combatant prisoners before a major change in the Guantanamo policy happens; not to mention the upcoming elections. Now, delays are more likely to happen in each trial, pulling the army timetable back with them.

The involvement of the detainees won't ever be truly known, and it might just be true that they are, indeed, a terrorist threat to national security. However, by misjudging them and casting a shadow on the legitimacy of their processes, the U.S. not only puts in doubt their guilt, but also the capacity of the army to deal with the enemy and defend their country, and the very democracy they're trying to install in Iraq and showcase to the world. Finally, the law is beginning to understand this.
©2007 OhmyNews
Other articles by reporter Alan Mota

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