Gitmo Drama Turns Into Farce

You could make a movie ought of the chaos at Guantanamo Bay-- actually, you could make two movies. The first could be a drama which focuses upon the fact that hundreds of the detainees down there in Cuba have been held now for half a decade despite having never fired a shot in anger at U.S. troops or otherwise engaged in any acts of terrorism. The second movie could be a comedy which focuses upon the inapt, inept and half-ass ways in which our government has tried (and so far miserably failed) to process the men through some sort of fair tribunal system.

Yesterday was a day of farce in this never-ending story. Two military judges threw out two separate detainee cases because the definition of the detainees as classified by the military did not match the classification of the detainees contained in the new Military Commissions Act. In the law, only "unlawful enemy combatants" made be tried by the newly-constituted military panels. But on the ground, in Cuba, the detainees have been classified only as "enemy combatants." For the want of a nail....

The stunning turn-- anyone want to cry "technicality" to the judges' faces?-- means that we shouldn't expect any actual trials at Gitmo for quite some time. Either the military will have to "re-classify" the men as "unlawful" combatants or the Congress will have to change the new law to make it match the classification with which our military already has tagged the men. Although Plan A might take less time, Plan B makes more sense. Even before Monday's shockers, some Democrats on Capitol Hill were talking about revising the Military Commissions Act to make it more fair to the detainees (and also to resident aliens). And after Monday's news, even Sen Arlen Specter (R-Pa.), the ranking member of the Senate Judiciary Committee, said it might be time to simply fix the problem correctly (at long last) instead of trying to rush through measures which, for years now, have failed to satisfy whatever legal tests have applied. We started down this road, remember, in 2002.

Meanwhile, I'll update the Bench Conference later today, after I. Lewis "Scooter" Libby is sentenced by U.S. District Judge Reggie B. Walton. Just in case you are wondering, I am predicting that Libby will indeed get some prison time. And if I am wrong I am quite confident that you will remind me. Have a good morning.

By Andrew Cohen |  June 5, 2007; 8:36 AM ET
Previous: The Battle Of Curlin: Court Fight Over Great Horse | Next: Truth and Consequences for Libby


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"I am predicting that Libby will indeed get some prison time."

It couldn't happen to a more deserving person. Except for Dick Cheney.

Both are proud of doing things that would cause others to hang their heads in shame.

Posted by: Federalist | June 5, 2007 10:33 AM

"I am quite confident you will remind me." Ha ha. We do aim to please. Good morning, likewise.

Posted by: Art | June 5, 2007 11:27 AM

I'd like to think that Judge Walton will provide for some prison time, both for justice purposes and as a direct warning to all of those (from all political parties) who will end up in positions similar to Mr. Libby's some day.

Posted by: DC | June 5, 2007 12:00 PM

Plan B is a no-go. Under international & domestic law, everyone who engages in hostilities in an "enemy combatant." The MCA grants jurisdiction over "alien unlawful enemy combatants," a subset of "enemy combatants." The "alien unlawful" part was inserted last year to protect 1. American citizens and 2. lawful combatants. If Congress ever stripped the "alien unlawful" part out, American citizens and foreign soldiers would fall under the MCA in direct violation of the U.S. Constitutiona (Hamdi v. Bush) and international law (Geneva Conventions).
The only way to fix the problem is to redo the CSRTs, which will take months, if not years. And then the next President can fix the mess.

Posted by: dc law student | June 5, 2007 12:10 PM

I pretty sure the author intended for the whole law to be rewritten to give the full protections required under international law and US traditions to all those in our custody, not to change the law to allow all those that dare oppose US forces to be treated as criminals.

Posted by: Muddy | June 5, 2007 12:53 PM

2 1/2 years for Libby.

"'People who occupy these types of positions, where they have the welfare and security of nation in their hands, have a special obligation to not do anything that might create a problem,' U.S. District Judge Reggie B. Walton said."

Message sent.

I suspect though that if the President is going to pardon Libby, it would be in his political interest to do it sooner, rather than later.

Libby knows things about this Administration that only people named Bush, Cheney and Rove know. An incarcerated Libby is a danger.

Unless there's a huge payoff awaiting Libby when he comes out of prison, why should he be the only one to take the fall?

Posted by: DC | June 5, 2007 12:54 PM

Anyone remember the days when we were a country of laws and had the high moral ground? It was what made us great.

Posted by: dan | June 5, 2007 01:20 PM

Any of the Cheney/Bush officials who put together the legal foundations of "The War on Terror" and the Gitmo system, from Yoo and Addington on down, could screw up a one-man rock fight. Not to mention the Clown Prince of the whole thing, Gonzales. It will be amazing if a trial of any kind is ever completed for any Gitmo inmate.

Posted by: H5N1 | June 5, 2007 01:42 PM

If I recall correctly, the entire purpose of putting enemy combatants and terrorists at Guantanomo rather than in US Federal facilities was to sidestep the Constitutional rule of law and create a place where undemocratic principles like torture and indefinite detention without due-process would be not only acceptable but practical. Isn't that criminal? Setting up a haven for fascism should be a crime...

We were told that our values were getting in the way of prosecuting the "War on Terror". The AG told us that we need to redefine freedom in the face of the threat of terrorism and promoted guidelines for torture.

Nobody actually thought out the constitutionality of any of it, it was designed to sidestep "Constitutionality".

Now that the NEOCONs have been stripped of their right and ability to rewrite laws and ignore foundational American principles we are faced with having to clean up their mess.

It wouldn't surprise me if the whole thing collapsed like the house of cards it is and we end up holding the empty bag.

The Khadr case is particularly chilling in that it involves a child-soldier who threw a grenade in battle in his homeland and killed and wounded some US soldiers - thus he is held as an adult in arguably the harshist facility in the free world, indefinitely. If we try him, we are guilty of criminalties that aren't consistent with American values as we push them on Russia and the rest of the world. If we don't try him and release him, he goes home, hates America and becomes an Al Qaeda cell leader.

All he ever was is a kid who was abused by the adults in his life. First in his own country by his own countrymen, then by us. How does a 15year old end up on the battlefield otherwise? We maintan Guantanamo to avoid having to act on our own values.


We have legal recourse to do the right thing to every inmate at Guantanamo. If they were simply soldiers, they should be returned to their countries of origin. If they were terrorists they should be turned over to the World Court in the Hague. It is more symbolic that the world rejects their rhetoric and crimes and holds them to justice than the US holding them accountable.

Of course the Cheney administration and Cheney's poodles including the President and the AG would tell us differently.

Posted by: Nobody Knows | June 5, 2007 04:43 PM

In pretty complete agreement. Note how pathetic and opportunistic the administration looks when tide moves away from them, and yet as soon as things went their way so willing to "lord it over" without conscience. Not one for kitchen psychology, but they strike me a lot like nerds teased as children, their lives become one of deception myopically to get to the position for its own sake (often "I'll show them "under the smile) and then become the unworthy antiheroes given the keys to the kingdom through sophistry (which they now have successfully have infiltrated as a mass norm, rather than change once they get to the end-always the rationale that was a means to the end,in the hope that one will change when one achieves the end- a la the Gates' giving away assets to causes) , thinking that the position is the end in itself, not aware of the position's purpose or principles, and then that once achieved it is (religious/cosmic?)validation of their worth in opposition to their enemies (must have enemies to define their identity), so oppression is justice.
Opulently attired Goneril and Regan also come to mind ("reason not the need"), and I think not to be dismissed as some rarefied literateness, but has direct relevance.

"Losers" in the real sense, rather than what such of their persuasion often use by the term to denote those who didn't "succeed" to the position by any means. I hope much of the country who accepted the abuses you mention even after much disclosure,has, beyond the self-congratulation, better qualities somewhere.

(We also know that our administration considers it "ridiculous" for our brave forces to be subject to the world standards of the Hague court. And btw f.. the administration and the "poodles" you mention)

Posted by: Al S. | June 6, 2007 11:31 AM

Yeah, reality and truth are obstacles to our (who is our?) WILL. Imagination and visualization don't need truth, they can bypass it to get to sophistic "going through the movements"! Gee, I wonder who came up with THOSE fine "techniques", and widely popularized ones at that, by subversive force by various means, for instance images not requiring proof or argument.

Freedom, "LIBERATION", a new quasi-Sartrean existential American "revolution" directed by gurus for clinical, internally dysfunctional automatons (or socially, and often personally,well-behaviorized under the name of animal behavior and "training", which is pretty much just as robotic as filing away acts/reactions of copying machines and computers as a "mode", "applications") not for people with true affects, even if such are flawed compared to scripted mechanical optimality .

What would Plato/Socrates say to this? Oh, I forgot, that's been ignored along with their guiding influence on 2000 years of Western development. Nietzsche and the police regimes who espoused him are, in effect, what our, in actuality, pathetic selves now celebrate.

Fine job!Congratulations!

Posted by: Vance G. | June 6, 2007 01:41 PM

What can I say?

Posted by: Aliza | June 16, 2007 04:12 PM

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