One has to sympathize with the Administration lawyers defending the President's handling of the detainees at Guantanamo. The decision in favor of the Muslim captives was a forgone conclusion considering the Administrations bungling.
The Administration failed to distinguish between Taliban fighters who could be considered prisoners of war and dangerous Al-Qaeda hard cases. Unable to differentiate one from the other quickly, the administration decided to treat them all the same. This turned the sad sack Taliban bumpkins into figures of sympathy. It's not that hard to tell an Afghan from "others." Handing the Afghan prisoners over to their own Government for internment would have solved that problem at a stroke. The foreign fighters who were left, were in all probability, Al-Qaeda. Military tribunals could, and should have dealt with them speedily.
But the Administration insisted on keeping the whole grab bag of Afghan humanity cooped up at Gitmo and compounded the error by claiming that they all occupied a unique status in law, neither prisoners nor war criminals. Beyond the reach of American law by virtue of being held overseas, they could only be tried by military tribunal as they were all "unlawful combatants." Perhaps even this approach might have worked if the administration had acted with dispatch. But of course it didn't, and the twin forces of politics and legal punctiliousness brought the policy down this week at the Supreme Court.
I have read about military tribunals in time of war. In World War Two, German soldiers found operating behind American lines, in American Uniforms, were tried by such tribunals. Due care was taken to prove the facts, the prisoners had legal representation and were duly shot without a fuss. That, is how a military tribunal works. Taliban fighters were fighting as combatants of the Taliban government however poorly organized that government was. We recognized that government. On the fall of the Taliban we should have made a good faith effort to repatriate them to Afghanistan. Where we could prove individual Taliban fighters committed war crimes, we had the option of trying them before our military tribunals just as we did German and Japanese troops Sixty Three years ago.
As for the Al-Qaeda operatives that fell into our hands, they are accomplices in 9/11 so they all merit war criminal status and the military tribunals are ready and waiting.
I suspect that with it's usual incompetence, the administration couldn't decide what it wanted more, intelligence extracted from Al- Qaeda prisoners or show trials for the folks back home. So seven years later, Khalid Muhammed and the others are alive, untried and the liberal lawyers have snatched the initiative from the administration.
Can Bush really be so naive as to believe that this unique and bizarre legal status would stand? Where did he get the idea that they could hold people indefinitely?
I have a theory.
Imagine The President, Alberto Gonzales, Carl Rove, and perhaps Rummy, conferring in Cheney's undisclosed bunker deep under The Willard Hotel. Having declared an undeclared war on the tactic of terror itself, they are scratching their heads over what to do with the terrorists they might catch. They soon realize that in an undeclared war on a tactic, anyone they capture may have the ACLU on their side. Alberto readily confesses that his men are not up to seeing if this is so. Cheney asks, "How can we hold them without letting them talk to their lawyers like those perps do on Law and Order? There is no response. Then, the President has a flash of insight triggered by his years of study at Yale. "See, I read this book about a guy name Monte Kristof, and, and, the Belgians kind of renditioned him off to a secret off shore prison called the Gato Deaf. Then they put an iron mask on him and he's never heard from again." "We could do something like that, couldn't we?" Alberto nods gravely.
Then again, I may be giving them too much credit.