A Dubious Honor

On the basis of one word, "unlawful," a military judge threw out charges today against a 20 year old Toronto man Omar Khadr, held at Guantanamo Bay, who is accused of having murdered an American soldier, in Afghanistan, when he was only 15. The judge, who is an Army colonel, Peter Brownback, said that Khadr's classification as an "enemy combatant," by a previous panel, instead of an "unlawful enemy combatant" makes him ineligible for prosecution under the Military Commissions Act of 2006. Oh, the power of a single word.

Given that not a single detainee, at Guantanamo, has been designated as "unlawful," this ruling has the stunning potential of resulting in dismissals of all charges against any detainee lucky enough to find themselves in front of a military tribunal, or even know what they are charged with. Khadr's attorney, Marine Col. Dwight Sullivan, insists that the judge's decision to dismiss his case comes not as the result of a mere "technicality," but instead is proof of "a system of justice that does not comport with American values." (AP)

While human rights abuses, suicides, and related outrages, at the detention camp in Cuba are receiving lots of media attention, few are reading the fine print in the legislation passed, last year, that allows for a new system for trying war crimes in which the prosecution must comply with a 72 hour window for appeals to a court that has yet to be created. Kafka would have loved that! Yes, for now, the "court of military commissions review" , exists only on paper, and as part of the Military Commissions Act which New York Congressman Jerrold Nadler, a Democrat, plans to investigate, asserting that the legislation is "riddled with problems and created a process that operates outside the rule of law." (AP)

Arguably, the whole notion of a military tribunal to try detainees, as created by this administration, suggests that the so-called "rule of law" operates within its own vacuum, one that is itself not merely insular, legally anachronistic, but immune from accountability, and congressional oversight. That said, the system is not immune from oversight by the Supreme Court which rejected previous attempts at military tribunals, calling the method by which this administration wishes to try detainees, in a word, unconstitutional. Of course, new guidelines for war trials were quickly put in place, and passed by Congress, which allow for the kind of hearing today that resulted in the extraordinary dismissal of charges against Khadr and, in a related case, of those against Hamdan, too.

More troubling than the notion that one may seek redress from a military commissions review that has yet to be created is a look at the revisionist stance on terror espoused by chief prosecutor in the Hamdan case, Army Lt. Col. William Britt, who contends that one might even argue that the war on terror began in 1993 when the World Trade Center was first bombed. This kind of mangled logic ranks right up there with that of criminalizing certain war crimes, such at conspiracy, retroactively or, for that matter, classifying and declassifying information based on political expediency. Once again, we witness a precedent setting proclivity on the part of this administration to break the law, and then make it law.

But, plainly, there is no nuancing one essential fact, the U.S. now has the dubious honor of being the "first country in modern history to try an individual who was a child at the time of the alleged war crimes," (AP) as well as to try to revive practices that were vestigial even in feudal times.

So it is then that a young man, Omar Khadr, one who isn't even old enough to drink in most states, may yet get to return to his native Canada, and leave Guantanamo Bay where he remains, as a consequence of the ruling of one military judge who turned ambiguous terminology like "enemy combatant" into the samurai's sword it deserves, showing that the law as written and rewritten over the past half-dozen years must surely backfire when an infrastructure of injustice comes apart, bit by bit, thanks to the efforts of those who still remember to read the fine print.