Looks like there was a little snafu over in Guantanamo Bay, where apparently, under orders from the president and DoD, our detainees have been classified by military officials as "enemy combatants." That may sound like typical parlance, but it's not. Because for detainees to be tried, they have to be brought up on charges, and for that to happen they must technically be considered "unlawful enemy combatants." It sort of unclear to me how that determination is made. Theoretically, the distinction is made to protect those detainees who commited accepted acts of violence in a war and at the same time allow military officials to put anybody whose conduct was beyond the pale on trial. Technically, though, part of adhering to the law of war is to look like a conventional soldier--national army, uniform, etc.--and so, while arrested al Qaeda fighters might have been conducting themselves exactly as one might expect a soldier to conduct themselves, they may also have been violating in some small way the laws of war.
It's pretty clearly just a semantic oversight, as the article said. Still, it may have pretty serious consequences since every detainee is similarly classified, and all will now require review. This has the right all pissed, because it means some possibly non-war-crime-committing al Qaeda fighters might go free. Here's Andy McCarthy at The Corner:
[T]hat could be a big problem since it would presumably necessitate re-doing all of the combatant status review tribunals before commissions could go forward.
The government is going to appeal. That, too, could be problematic according to the defense, which says they have only 72 hours to do so and the appellate court for commissions has not been constituted yet.
We don't know enough facts yet to make an assessment of what's going on here. Yet, if things are as the defense claims — and it bears remembering that very often they are not — this would be a demonstration of monumental incompetence.
If I were Andy, I wouldn't worry much. It'll all be fixed, no doubt, before any more detainees get a pass. But this is all very telling. Think about it this way: If, say, the president had wanted to carry things forward with an eye on real justice, he and the DoD would have known full well every legal distinction of this sort and made sure that only real suspects were brought up on war crimes trial. If, on the other hand, it was always his intention to make sure everybody at Guantanamo was treated as a war criminal then following subtle but important technicalities isn't really a big deal. Call 'em whatever you want. Just do all you can to make sure they fry.
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