"It is a victory for the rule of law and the law of war." This apt comment on the dismissal by a US military court of charges against two prisoners held in the Guantánamo Bay prison camp was made by one of their appointed military defence attorneys.
Two of the court's judges decided separately that it has no jurisdiction to hear the charges because neither prisoner was classified as an "unlawful enemy combatant". This designation was legally necessary under legislation rushed through the US Congress last September following the Supreme Court's ruling that the government cannot set up a criminal justice system at Guantánamo which violates US and international law. In response the government created a system of military commissions. But astonishingly, in its arrogant complacency that the Supreme Court ruling could be easily bypassed, it did not classify the prisoners as unlawful.
Legally this matters hugely because if they are lawful the prisoners are entitled to full prisoner-of-war status under the Third Geneva Convention on prisoners of war. Unlawful enemy combatants are protected against inhumane treatment by Common Article Three. The Supreme Court ruled the previous judicial process illegal because it violated the US military code, transgressed the criminal law, had inadequate congressional authority and breached the Geneva Conventions. Technically it remains open to the government to reclassify all the prisoners as unlawful, since the military court made these decisions without prejudice. That would be a lengthy and cumbersome process, however. It would fly in the face of the Supreme Court's ruling that the conventions apply in US domestic law. Equally astonishingly, the specified appeal court procedure has not been put in place either.
It is important to concentrate on the legal details of the Guantánamo issue, since this is the nub of the matter. The Bush administration set up the Guantánamo camp shortly after the devastating 9/11 attacks on New York and Washington. Its inmates were picked up by US military and their agents and allies in Afghanistan, Saudi Arabia, Iraq and many other states and brought directly or indirectly to the camp in Cuba. In this way they were held extra-territorially and, it was assumed, outside the immediate purview of US and international law. Most of the estimated 385 prisoners have been held for more than five years. Only a handful, including the two whose cases were dismissed, have been charged with crimes. Most are held in solitary confinement and many have been repeatedly beaten, shackled, humiliated, deprived of sleep or otherwise tortured. It has been a disgraceful and shameful episode in the history of US justice. But once again the US legal system has been shown to be independent of government and capable of insisting that executive authority is subject to the rule of law even when dealing with extreme cases. The camp should be closed immediately and its inmates charged or freed.