Change is Necessary at Guantanamo Bay

The ruling on Friday by a military judge declaring that charges be dropped against Canadian Guantanamo Bay detainee Omar Khadr, who was fifteen years old when arrested, highlights the fact that a suitable resolution to the criticisms of the Guantanamo Bay detention center has yet to be found. Charges were dropped against Omar Khadr due to the fact that he was not labeled an "unlawful enemy combatant." The problem of properly designating the detainees as a certain type of combatant is where a large part of the controversy over Guantanamo lies.

In an article titled, "Legislation Could be Path to Closing Guantanamo," The New York Times touches on the issue of classifying detainees. If a detainee is determined to be an enemy combatant, he or she can be held at Guantanamo. The military commissions, however, can only try that person if he or she is deemed an "unlawful enemy combatant." The commissions do not have jurisdiction over lawful enemy combatants. Herein is where the problem lies. The system for determining whether someone is a lawful or unlawful enemy combatant is based in a time of conventional warfare, not in our present day "war on terror" where the status of a combatant will most often be unlawful. "Lawful enemy combatants are, broadly speaking, uniformed soldiers fighting for a government. Unlawful enemy combatants, according to the Military Commissions Act, are everyone else who has engaged in or supported hostilities against the United States, including members of Al Qaeda and the Taliban." To classify all combatants held at Guantanamo as unlawful is to impose a classification system on them that does not apply to the current situation, which is anything but conventional.

There are many issues related to trying those at Guantanamo beyond the simple definition issue of classifying enemy combatants as unlawful or lawful. There is a serious lack of evidence against numerous Guantanamo detainees because many were captured under circumstances that did not allow the appropriate gathering of evidence. This lack of evidence does not necessarily mean that those persons should be released. The New York Times writes, "The most senior administration official to describe the concept publicly is Mr. Gates, who said, 'I think that the biggest challenge is finding a statutory basis for holding prisoners who should never be released and who may or may not be able to be put on trial.'" In addition, controversy exists over who should determine the status of the detainees.

What the myriad issues surrounding the detention center at Guantanamo Bay demonstrate is that this new conflict, centered around terrorism, does not fit into the framework of what our justice system is set up to deal with--conventional war. The present day conflict requires a new framework; the creation of which is no easy task in the face of political, social, and constitutional obstacles. While the specifics of such a framework remain elusive, what is certain is that the public as well as politicians and officials must avoid narrow-mindedness; for instance, the immediate closing of Guantanamo Bay is not a viable course of action, but allowing its continued operation without review or modification is similarly unrealistic.


Cat Zweig
ADA Legislative Intern