Improvisational Justice

WASHINGTON — Now we’ve bungled our own kangaroo courts.

Two military judges, acting separately in the cases of two alleged terrorists, have dismissed war crimes charges against both. The legal reasoning is technical. But this breakdown is no technicality — it is farce.

The detainees, Omar Khadr, a Canadian who was 15 at the time he was picked up in Afghanistan and flown to the U.S. military detention camp at Guantanamo Bay, Cuba, was charged with lobbing a grenade that killed an American soldier, as well as with spying and other terrorism-related offenses. Salim Ahmed Hamdan, a Yemeni, is said to have been Osama bin Laden’s driver and bodyguard.

Their cases were dismissed when the military judges ruled that the Pentagon had not properly determined the two were “unlawful enemy combatants” — and thus eligible to be tried for war crimes. The two were designated in a different, earlier Pentagon review only as “enemy combatants.” Lawful combatants who kill opposing forces can’t be tried for war crimes.

This is what happens when you make up the rules as you go along.

The origins of the semantic squabble lie in the Bush administration’s rejection of the Geneva Conventions, the longstanding and internationally recognized system for classifying people picked up on the battlefield, detaining them and determining their fate. Having thrown out the rule book, the Bush administration devised its own seat-of-the-pants schemes for those it detains in the so-called war on terror.

“The chaos we’re seeing now is a direct result of that,” Jameel Jaffer, a human rights monitor for the American Civil Liberties Union, said in a telephone interview as he was leaving Guantanamo, where he’d monitored the proceedings.

Here is how it has gone: Five years after the administration opened the detention camp, not a single suspected terrorist has been tried, found guilty and sentenced. Only David Hicks, an Australian who made sordid allegations of abuse, pleaded guilty and returned home last month to serve nine months in jail there. The Hicks deal was engineered between the Bush administration and Australian Prime Minister John Howard, whose re-election prospects have been weighted down by the Hicks case and by the prime minister’s supportive relationship with Bush in general.

No court — not the U.S. Supreme Court, and now not even the Pentagon’s own court, which was set up by Congress last year in pre-election legislation — has found the Bush procedures to be lawful.

The newfangled Military Commissions Act of 2006 — a nightmarish hodgepodge of rules that mock basic concepts of what most Americans would recognize as justice — was hastily cobbled together after the Supreme Court rejected the administration’s first effort to set up such a system. Now the quick-fix replacement has failed.

The Pentagon says it believes its new procedures are valid and is considering an appeal. This would be another detour on the way to the inevitable: The overdue closure of the Guantanamo penal colony.

Of more than 750 men who once were imprisoned there, only about 380 remain. The rest have been transferred back to their home countries where, in the vast majority of cases, their governments have determined that the former prisoners pose no risk. They have resumed their lives without much indication that they were ever among “the worst of the worst,” as former Defense Secretary Donald Rumsfeld famously called them.

Robert Gates, the current Pentagon chief, has urged Congress and the White House to work together on a system for closing the camp and transferring only those detainees who must still be held to prisons in the United States. Congress now fiddles with several proposals, notably measures introduced by Sens. Tom Harkin, D-Iowa, and Dianne Feinstein, D-Calif., to shutter the shameful place and salvage some measure of American dignity by allowing those who must be tried to have their cases heard in standard military or civilian courts.

What we do not need is another attempt by the White House and its blinkered allies on Capitol Hill to rewrite a new legal “system” for Guantanamo to circumvent the objections that the Pentagon’s own judges have thrown up. We’ve had five years of such fiddling. And all the while, the United States has done nothing but burn a black mark of shame upon itself.

Marie Cocco’s e-mail address is mariecocco(at symbol)washpost.com.

© 2007, Washington Post Writers Group