Monday, two military judges separately dismissed all charges against Omar Khadr and Salim Hamdan — the former accused of killing a U.S. solider and the latter, one of Osama bin Laden’s drivers. The two men have been held at the detention facilities at Guantanamo Bay for more than five years.
Charges against these individuals, who may well be guilty and deserving of the harshest punishment, were dismissed because the way the military classifies the detainees does not match the way the Military Commissions Act — hastily passed by Congress last year – classifies them.
It’s a legal distinction, but one that underlies the hurried nature and lack of forethought put into the rules governing detainment of the 700 plus detainees that have been held at Guantanamo for the past five years. In that time, only three detainees have been charged with a crime. Now two of those three have had their military tribunals ground to a halt.
The current legal impasse provides the perfect opportunity for this new Congress to address the deplorable system of artificial justice we have created in Guantanamo. It is literally a legal black hole where people are being held, without charge, indefinitely.
Currently, the Defense Department estimates that of the 385 detainees at Guantanamo, 80 will be charged and tried. Colonel Dwight Sullivan, Chief Defense Counsel in the Office of Military Commissions, estimates that trying that many people would take over a decade given the island’s remote location, limited access and the fact there is only one courtroom.
Keeping Gunatanamo open is damaging our credibility and hurting our efforts to conduct the global war on terror. Congress has an opportunity to change this wrong-headed policy. We can do so by shutting the facility down, transferring the detainees to the U.S. military brig system and trying them under military law. There they will still be under the strictest lock and key but also have the right to a fair and speedy trial so that we can determine their guilt or innocence and take appropriate action.
The United States is a country that believes in justice and is governed by the rule of law. Our policies should reflect our values. Guantanamo does not.
It should also be noted that last week, the fourth detainee committed suicide since the facility opened. For some, death appears to have been preferable to indefinite detainment. So far, Guantanamo detainees have been more successful committing suicide than getting charged with a crime.