Good Bye Military Commissions Act
"I bet you dollars to doughnuts when the Supreme Court gets hold of our work product, they are going to approve it."
--Sen. Lindsey Graham bragging about his Military Commissions Act last fall
Did Bush just lose his entire detainee policy?
A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court.
The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system. The ruling immediately raised questions about whether the U.S. will have to further revise procedures for prosecuting prisoners, leading to major delays.
The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier — and not as an "alien unlawful enemy combatant."
The Military Commissions Act, signed by Bush last year, specifies that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.
Sullivan said the dismissal of Khadr case has "huge" impact because none of the detainees held at this isolated military base in southeast Cuba has been found to be an "unlawful" enemy combatant.
"It is not just a technicality — it's the latest demonstration that this newest system just does not work," Sullivan told journalists. "It is a system of justice that does not comport with American values."
Sullivan said that in order to reclassify Khadr — and other detainees — as "unlawful" enemy combatants, the whole Combatant Status Review Tribunal system would have to be overhauled, a time-consuming act.
Congress, in its wisdom of caving in to the Bush White House last year failed to draft an appeal process for the Pentagon to follow in challenging this ruling. And in being too clever by half, the White House got a bill that forced the federal appeals courts to extract themselves from the tribunal system and any jurisdiction in such cases. So today’s ruling, by Bush and Congress’s own hand, stops the tribunal process in its tracks. Does this now give Arlen Specter and the Senate Democrats the opening they needed to overhaul the whole flawed system? I wonder how McCain and Lindsey Graham feel now about their handiwork?