Andy Worthington: Chaos and Confusion: The Return of the Military Commissions
[Andy Worthington is a journalist and the author of "The Guantanamo Files" (Pluto Press), the first book to tell the stories of all the prisoners in Guantanamo. He maintains a blog here.]
For anyone who has studied Guantánamo's military commissions closely over the last eight years, it was obvious that their revival last week, in a supposedly new and improved form, was bound to be a disaster.
First dragged out of obscurity in November 2001 by Dick Cheney and his close advisers, specifically to secure the convictions of "terror suspects" in a system designed to allow evidence obtained through the use of torture, the commissions failed twice before their recent reincarnation. In June 2006, the Supreme Court ruled that they violated both the Geneva Conventions and the Uniform Code of Military Justice, and when they were revived by Congress later that year (with torture banned, but coerced evidence allowed at the discretion of the judges), they then stumbled from one disaster to another from March 2007 until January 2009, when President Obama suspended them.
Throughout that time, they secured only three contentious results, and were publicly undermined by their own military defense attorneys. On two other occasions, they were rocked even more fundamentally: In October 2007, when the chief prosecutor, Col. Morris Davis, resigned, complaining that the entire process was subjected to political interference, and in September 2008 when another prosecutor, Lt. Col. Darrel Vandeveld, resigned because he discovered that the system was incapable of delivering justice.
President Obama's freeze on proceedings on his first day in office should have been the end of the story, and he should have had the courage to realize that federal courts - with their long and successful history of prosecuting cases related to terrorism - were the only valid venues for trials. Instead, he turned his back on his own pledges on the campaign trail, and his opposition to the Military Commissions Act as a senator in 2006, and, with the support of Congress, tinkered once more with the commissions' rules, tightening the restrictions on the use of hearsay and coerced evidence, but neglecting to introduce either a lower age limit for those who can be charged or a sunset clause in case it all went horribly wrong.
Last week, when the new rules were tested on Ibrahim al-Qosi, a Sudanese prisoner who was first charged in February 2004, was charged again in February 2008 and is one of the first five prisoners charged by the Obama administration, the hearing began in chaos and confusion, and never recovered. In a demonstration of the kind of lack of attention to detail for which the Bush administration was notorious, and which left the military judges fumbling for answers, the judge, Air Force Lt. Col. Nancy Paul, was immediately confronted by a fundamental problem that, bizarrely, no one appeared to have seen on the horizon.
Under the Bush administration, for prisoners to be eligible to face trials by military commission, they had to have been subjected to a Combatant Status Review Tribunal, and to have been designated as an "unlawful enemy combatant." Under the Mk. 3 Commissions, however, they are referred to as "alien unprivileged enemy belligerents." The Washington Post explained that this description was "more in line with the Geneva Conventions," according to military prosecutors, but no one had thought to inquire whether the change would be acceptable to the judge, and although Lieutenant Colonel Paul did accept it, noting that it was "specifically authorized under the MCA of 2009," she was in no mood to do so without allowing a challenge from al-Qosi's defense team...
Read entire article at Truthout
For anyone who has studied Guantánamo's military commissions closely over the last eight years, it was obvious that their revival last week, in a supposedly new and improved form, was bound to be a disaster.
First dragged out of obscurity in November 2001 by Dick Cheney and his close advisers, specifically to secure the convictions of "terror suspects" in a system designed to allow evidence obtained through the use of torture, the commissions failed twice before their recent reincarnation. In June 2006, the Supreme Court ruled that they violated both the Geneva Conventions and the Uniform Code of Military Justice, and when they were revived by Congress later that year (with torture banned, but coerced evidence allowed at the discretion of the judges), they then stumbled from one disaster to another from March 2007 until January 2009, when President Obama suspended them.
Throughout that time, they secured only three contentious results, and were publicly undermined by their own military defense attorneys. On two other occasions, they were rocked even more fundamentally: In October 2007, when the chief prosecutor, Col. Morris Davis, resigned, complaining that the entire process was subjected to political interference, and in September 2008 when another prosecutor, Lt. Col. Darrel Vandeveld, resigned because he discovered that the system was incapable of delivering justice.
President Obama's freeze on proceedings on his first day in office should have been the end of the story, and he should have had the courage to realize that federal courts - with their long and successful history of prosecuting cases related to terrorism - were the only valid venues for trials. Instead, he turned his back on his own pledges on the campaign trail, and his opposition to the Military Commissions Act as a senator in 2006, and, with the support of Congress, tinkered once more with the commissions' rules, tightening the restrictions on the use of hearsay and coerced evidence, but neglecting to introduce either a lower age limit for those who can be charged or a sunset clause in case it all went horribly wrong.
Last week, when the new rules were tested on Ibrahim al-Qosi, a Sudanese prisoner who was first charged in February 2004, was charged again in February 2008 and is one of the first five prisoners charged by the Obama administration, the hearing began in chaos and confusion, and never recovered. In a demonstration of the kind of lack of attention to detail for which the Bush administration was notorious, and which left the military judges fumbling for answers, the judge, Air Force Lt. Col. Nancy Paul, was immediately confronted by a fundamental problem that, bizarrely, no one appeared to have seen on the horizon.
Under the Bush administration, for prisoners to be eligible to face trials by military commission, they had to have been subjected to a Combatant Status Review Tribunal, and to have been designated as an "unlawful enemy combatant." Under the Mk. 3 Commissions, however, they are referred to as "alien unprivileged enemy belligerents." The Washington Post explained that this description was "more in line with the Geneva Conventions," according to military prosecutors, but no one had thought to inquire whether the change would be acceptable to the judge, and although Lieutenant Colonel Paul did accept it, noting that it was "specifically authorized under the MCA of 2009," she was in no mood to do so without allowing a challenge from al-Qosi's defense team...