WaPo discusses the Gitmo Quagmire

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WaPo discusses the Gitmo Quagmire

A few years ago I had the opportunity to go down to Guntanamo Bay to witness pretrial motions in the case against the five Al Qaeda planners of 9/11.  (Ok, accused planners if you prefer.)  As a lawyer and as someone who is a total dork for military stuff, I was super excited.  Day 1 dealt with some pretty arcane legal stuff that I found fascinating.  Day 2 started the same, and then the lunch break hit.  After lunch one of the detainees did not return to the court room, and his attorney said that the reason was an explosive stomach (shall we say.)  For literally the next day and a half the court explored whether explosive bowels was a voluntary or involuntary absence from the court room.  If it was involuntary, then the court case has to be stalled, so that the guy could attend.  If voluntary, then the pre-trial hearings can go on with just the lawyer.  So for a day and a half we talked about poop.  I still to this day do not how that argument played out, but I listened to possible answers including adult diapers and setting up a TV in the rest room.  

To be perfectly honest, that little vignette tells you everything you need to know about my position on the trials.  The level of absurdity was unreal.  We are seven years on now, and we still haven't started the actual trial.  

As an aside, lest you think these guys aren't the most evil people ever, they would taunt 9/11 families who were behind a 1 way mirror by smiling at them and such.  It was detestable.  But as a lawyer, my natural tendancy is to believe everyone (innocent or guilty) deserves their day in court.

Washington Post today updates us on how well it is going.  And while I hate to ruin the punchline, the Readers Digest version is "not well."

When the George W. Bush administration announced in September 2006 that 14 major terrorism suspects had arrived at Guantanamo Bay, Cuba, military lawyer Morris Davis heralded it as a sign of the government’s commitment to attaining justice.

For Davis, then chief military prosecutor at the top-security facility, the end of the suspects’ detention at secret CIA prisons overseas promised a credible legal reckoning in the wake of the Sept. 11, 2001, attacks.

“I want our grandchildren to look at Guantanamo the way we look back at Nuremberg,” Davis told the lawyers on his team, offering as a model the prosecution of Nazi officials that followed World War II. “We felt we had the ability to conduct these trials in a way that . . . the country would be proud of.”

Ten years later, none of those 14 “high value” detainees brought to Guantanamo Bay have been convicted or sentenced in the military commissions. Roughly half a dozen cases tried in other commission proceedings have resulted in convictions, but most have been thrown out on appeal.....

Some lawyers say that even if the cases can be concluded, the process is now seen as so tainted that those verdicts may be publicly dismissed.

“The fact that we are here in 2016, probably further from trial than we were in 2011, tells you that this is an experiment that failed,” said Richard Kammen, a civilian defense lawyer for one of the high-value detainees.

Lt. Col. Valerie Henderson, a spokeswoman for the Pentagon, said military judges and lawyers have been working to put the necessary pieces in place for the eventual trials to begin. “The Department of Defense is committed to fairness and transparency in the military commissions proceedings,” she said.

You should go read the entire piece, because it is quite fascinating.  I have no idea what the right answer is.  I know these guys will never breathe free air again, and I'm fine with that.  But there's a huge cost to us for these proceedings, and we aren't anywhere near the end.  And these are not young men we are discussing, the vast bulk are in poor health, so I don't believe these cases will ever be concluded.

There is an interesting graphic that WaPo has that you need to see to understand where we stand now:


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Don't know why it is necessary to have a full blown civilian style trial. These men were not in uniform, not a member of a recognized national element and are accused of a Hague defined war crime. In addition, most were captured in arms, an old term that treats them as spies and saboteurs. Give them their timely procedure under appropriate military law and then dispose of the issue. Do do what we are doing now, which is little or nothing, is an insult to the victims of 09/11.

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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.