Court Rejects Bush’s Tortured Logic

Ann M. Schneider Jun 27, 2007

The People’s Lawyer, a project of the National Lawyers Guild NYC
By Ann Schneider
The Bush administration’s attempts to eviscerate the fundamental right to see a judge before being imprisoned (habeas corpus) has hit unexpected obstacles.

On June 11, a three-judge panel of the conservative Fourth Circuit Court of Appeals rejected the military detention of Illinois graduate student Ali al-Marri, ordering him to be given a civilian trial or be released. Judge Diana Motz wrote, “The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.” The court’s ruling came a week after military judges at Guantanamo, in two separate proceedings, dismissed terrorism charges against a pair of detainees who had been found to be enemy combatants by the Combatant Status Review Tribunals.

These tribunals, which permit coerced testimony, were set up by the Bush administration to deny Geneva Convention protections that require an individual hearing on the battlefield to separate actual combatants from civilians who were in the wrong place at the wrong time.

The two Guantanamo detainees are Omar Khadr, a Canadian who was 15 when he was captured in Afghanistan, and Salem Hamdan, a Yemeni who admits to being Osama bin Laden’s driver.

Ironically, due to a drafting error, there was a fatal discrepancy between the language of the tribunal and the Military Commissions Act of 2006. The Military Commissions Act gives judges jurisdiction over “unlawful combatants,” but the result of every single tribunal was to find the Guantanamo detainee a “enemy combatant.”

Therefore, Gen. Peter Brownback was forced to dismiss terrorism charges against the very first detainee who came before him. (Capt. Keith Allred, another military judge, reached the same conclusion in Hamdan’s case the same day.) What’s worse for the government is that there is nowhere to appeal. The Court of Military Commissions Review has not yet been established. For now, the government is asking the military judges to reconsider these decisions. But without new evidence, there appears to be no basis for a different outcome. Moreover, this drafting error applies to all Guantanamo detainees.

The government is no doubt burning the midnight oil to see if it can rewrite a few military regulations to salvage its process. Otherwise it must return to a Democratic Congress that may be less yielding to the administration’s demands to repeal habeas corpus.

One can only assume that the government’s resistance to giving each detainee an individualized hearing and access to court is because it lacks the evidence to associate them with Al Qaeda. Until such proof is adduced, each detainee is entitled to be treated humanely as a prisoner of war until hostilities end, something that is hardly possible at Guantanamo.

The Peoples Lawyer is a project of the New York chapter of the National Lawyers Guild (212-679-6018,

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