Legal commentators have argued for years about whether there might ever be legitimate trials for the so-called "enemy combatants" we're holding at Guantanamo Bay. Some say no. Others, like our friend Ben Wittes, argue that the evidence is inconclusive. They want to see what the Guantanamo military commissions produce before pronouncing them a failure.
We may never get there. Key actors are declining to play their part in a piece of theater designed to produce all convictions all the time. These refusals, affecting two trials this week, suggest that the whole apparatus—seven years and counting in the making—cannot ever be fixed. The trials are doomed, and they are doomed from the inside out.
Today we learned that the Pentagon has dropped charges against Mohammed al-Qahtani—the alleged 20th hijacker (or maybe the 21st or 22nd, since that title has gone to others before him). Along with five other "high value" detainees, al-Qahtani was facing capital charges at Guantanamo. The decision not to try him comes from the convening authority for the commissions, Susan Crawford. She didn't give an explanation for halting the prosecution, but, then, we don't really need one. As Phillip Carter notes elsewhere in Slate, it's been clear for a while that the evidence against al-Qahtani was torture (or near-torture) tainted, and prosecutors at Guantanamo had announced long ago that "what had been done to him would prevent him from ever being put on trial." In light of all that, you might wonder why he was one of the six trotted out for the big show trials in the first place.
Something in the unsavory history of al-Qahtani's interrogation (featuring sexual humiliation, attack dogs, stress positions, and sleep deprivation) must have proved too much for Crawford, which may reveal that Crawford has some filament of legal integrity or simply that she knows when to cut her losses. Either way, it's important that for every course correction at Gitmo from the Supreme Court, there have been many more from within the Pentagon. If the same people who joined the military in the hopes of fighting terrorism have had enough of the government's jury-rigged apparatus of Guantanamo justice, it's probably time to stick a fork in the whole thing.
Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals—some silent, some very public—have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.
Start with Charles Swift, the defense lawyer from the Navy's Judge Advocate General Corps who was appointed in 2002 to represent Salim Hamdan, Osama Bin Laden's driver and—thanks to Swift's willingness to buck the system—the big winner of the Supreme Court decision that sent the military commissions back to the drawing board in 2006. According to Jonathan Mahler's new book about Hamdan's case, Hamdan v. Rumsfeld, Swift doubted early on that it would be possible to present a zealous defense on Hamdan's behalf, and with fellow Navy JAG Philip Sundel, he lobbied his superiors to call the commissions "what they thought they were—kangaroo courts." When Swift couldn't work the changes he wanted internally, he teamed up with Georgetown law school's Neal Katyal to sue the Defense Department. Swift became an outspoken critic of the tribunals, including here in Slate.