Why detainee trials got snagged over a word

No one has designated those held at Guantánamo Bay 'unlawful' combatants. Does it matter?

By Warren Richey | Staff writer of The Christian Science Monitor

from the June 6, 2007 edition

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Washington - When Congress wrote the Military Commissions Act in 2006, the authors were careful to specify that only "unlawful" enemy combatants could be placed on trial under the new form of military justice at Guantánamo Bay, Cuba.

They wanted to make sure that President Bush and his commanders reserved the streamlined tribunals for the most egregious violators. So Congress repeatedly drew distinctions between "lawful" enemy combatants, who could not be tried at Guantánamo, and "unlawful" enemy combatants, who could.

It was all designed to help the Bush administration speed up the military-commission process and quickly bring suspected Al Qaeda members to trial. Instead, that careful distinction between lawful and unlawful combatants has now brought the controversial process to a screeching halt.

On Monday, military judges dismissed all charges against two accused members of Al Qaeda who were slated to undergo military commission trials at Guantánamo. The judges said the two men were never designated as unlawful enemy combatants as required under the Military Commissions Act.

The pretrial rulings sparked a new round of criticism from defense lawyers, human rights activists, and administration opponents who said the episode is more evidence of the need to dismantle the commissions and shut down the Guantánamo prison camp.

"Why is it that every time they try to have a military commission something goes wrong?" asks Muneer Ahmad, a professor at American University's Washington College of Law who has represented Guantánamo detainee Omar Khadr. "This is what happens when you try to create a legal system from scratch."

Others see the rulings as a relatively minor setback, with military prosecutors expected to win any appeal. Some analysts say the judges are simply wrong.

"I think critics are vastly exaggerating the significance of this," says David Rivkin, a Washington, D.C., lawyer who served in both the Reagan and elder Bush administrations.

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