Have the Guantanamo judges soured on the president's war tribunals?

The law, lawyers, and the court.
June 5 2007 7:02 PM

Line in the Sand

Have the Guantanamo judges soured on the president's war tribunals?

Prisoner Omar Khadr. Click image to expand.
Guantanamo detainee Omar Khadr, far left

What do John Ashcroft, Michael Luttig, Alberto Mora, David Petraeus, Robert Gates, Peter Brownback, and Keith Allred have in common? They are all lifelong conservatives and/or belt-and-suspenders, longtime military officers who were willing to both follow and, in their own ways, lead President Bush's "war on terror." Until, at least, each in his own way felt compelled to say, "Enough."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

By far, the most stunning aspect of the dismissed charges against Omar Khadr and Salim Ahmed Hamdan—the only two Guantanamo detainees staring down the barrel of a military trial—was that the two military judges in the cases (not one but two, mind you) dismissed them sua sponte, that is to say, without significant briefing or argument from the defense in one case. (The Hamdan team briefed this issue extensively but Khadr's team most likely did not). * That two military officers—Brownback and Navy Capt. Keith Allred—devised their own rationales for dismissing the charges is an astonishing development. They could have readily allowed these two trials to go forward; it would not have been difficult for them to construe the Military Commissions Act to provide them jurisdiction, especially if they had simply deferred to President Bush's 2002 determination that all associates and agents of al-Qaida are automatically "unlawful" enemy combatants. Instead, the two judges took it upon themselves to tell the Pentagon to go back to the drawing board and prove that these defendants were not only combatants, but that they had acted unlawfully—or else the tribunal does not even have jurisdiction to go forward with their war-crimes trials.

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In the coming weeks, we may well learn that Brownback and Allred drive Volkswagen buses and wear love beads. But I doubt it. More likely, we'll learn that they are among the many, many highly conservative legal and career military professionals once willing to follow this president wherever he led them, until suddenly one day when they were not. And just as John Ashcroft and James Comey have recently become the very unlikely poster boys for going toe-to-toe with this president, my guess is that Brownback and Allred were similarly using yesterday's proceedings to draw a line in the sand.

Over at the blog  War and Piece, an anonymous Air Force veteran characterizes yesterday's rulings as a "revolt by career military officers, especially military lawyers, who have previously compromised their integrity and oath of office to support a President and Administration who lied and violated US and international law to take the nation to war and keep it mired there for years." Whether or not "revolt" is the right word in this context, it's a word that's been used before to describe the flight of loyal conservatives from the senior ranks of the Justice Department.

We may never know what it is that prompted Brownback and Allred to take matters into their own hands; perhaps nothing so dramatic as a late-night hospital visit to rough up the critically ill. But we can speculate as to what about these tribunals led two handpicked military judges to pull the plug. So, a few theories to chew over, starting from the supposition that Allred and Brownback seemingly went a long way toward gumming up a whole lot of future trials at Guantanamo, even as they left the door open for these trials to begin anew.

For one thing, they may have simply become disillusioned with a process that is so clearly ends-driven as to have been described as "rigged" by one of the three prosecutors who eventually quit, rather than proceed with the trials. It's no secret that Defense Secretary Robert Gates wanted to see Guantanamo shut down, or that he was overruled by Vice President Dick Cheney. Why wouldn't two military men side with Gates in that fight?

That rift between the Defense Department and the Bush administration would only have been compounded by the small-fry cases brought yesterday. If the tribunals exist to try the 9/11 ringleaders, what were the judges to do when faced with Osama Bin Laden's chauffer and a guy who was 15 when he was picked up on the battlefield?

Why would these judges have believed that the tribunals exist to try the 9/11 ringleaders? Because, as professor Marty Lederman pointed out yesterday, that's what they'd been promised. Philip Zelikow, executive director of the 9/11 commission and until recently a close adviser to Secretary of State Condoleezza Rice, said in a widely publicized speech this April that after 2006, the worst excesses of the president's anti-terror programs had been cut back. He indicated that the United States had made a "comprehensive adjustment in its approach to the conduct of the armed conflict and associated operations against violent Islamist extremist groups such as al Qaeda."

Of the nine elements of this "new paradigm" (which ought, I suppose, to be rechristened as the new-new paradigm to distinguish it from Dick Cheney and his adviser David Addington's version that got us into this mess in the first place), one was to "close Guantanamo," and another was "employing these military commissions for major war criminals and al Qaeda's leaders, not Osama's driver." And who did Brownbeck and Allred see in their courtrooms yesterday morning? Osama's driver. And a Canadian kid who allegedly threw a grenade that killed a U.S. soldier.

What must it feel like to be handpicked to pass judgment over the "worst of the worst" and instead find yourself confronted with the worst of the tweens? If these military commissions are intended to be taken seriously, Khalid Sheikh Mohammed should be facing one. These commissions were intended to try war criminals, not battlefield combatants, and at least in Khadr's case, what arguably makes him a war criminal was that he was fighting out of uniform. These charges are simply not the regular fare for a commission evaluating serious war crimes. It may well be that the combination of unserious procedures and unserious defendants made the judges too uneasy.