This month an event unfurled in the political arena that made me proud of my country. This has not occurred often in recent months so it was notable. It was not the relative civility of the Democratic debates, though this gave me hope. No, the event was a procedural matter. A legal parsing match if you will.
On June 5th, two military judges dismissed war crimes charges against a pair of Guantanamo Bay detainees because they failed to meet guidelines required by the Military Commissions Act, pushed thru Congress last fall by the Bush Administration.
Now typically, doctors are not known to be cheerleaders for the legal profession, but in this case I’ll give them their due.
Despite the inconvenience caused by the decision, these military judges discharged their duty with honor. They followed the law to the word. And in fact a word was the missing piece. “Unlawful”. The two detainees were classified as “enemy combatants” rather than the required “unlawful enemy combatants”. This decision has refocused the public’s attention to the inconsistencies and problematic nature of the legal limbo that is “Gitmo”.
One of the detainees involved is Omar Khadr, a Canadian citizen. His father, Ahmed Khadr is reported to have been an associate of Osama bin Laden. The Khadr family relocated during Omar’s childhood, first to Pakistan then to Afghanistan. At the age of fifteen, Omar Khadr was captured when U.S. troops attacked an encampment in Afghanistan. Omar Khadr is charged with the death of Sgt. Christopher Speer, an Army medic who died of wounds inflicted by a grenade thrown during the battle. Omar was held in Afghanistan until he reached the age of sixteen and then was transferred to the U.S. prison camp at Guantanamo Bay, Cuba. He is now twenty years old.
As a physician, my training prejudices me to the individual. I worry about the implications of detaining a fifteen year old child, keeping him in solitary confinement during psychologically formative years with no hope of due process. The death of Christopher Speer is a tragic loss, for his family and for our country. But is it a war crime or an act of war? Is Omar Khadr an unlawful enemy combatant?
Another aspect that troubles me is the relative value of this detainee. Was his action more heinous than those committed by others who were detained in their home country? I am uninformed on this count, but a conceivable conclusion might be that his capture raised the opportunity to secure information from the minor child of an associate of Osama bin Laden. Is all fair in war? If one of our own were held in similar circumstances what would be our response? If a fifteen year old American boy were held in conditions that we find sanctionable in Cuba, would we be outraged? Indignant? Would we think our enemy uncivilized?
I was recently fortunate to meet George Edwards, an Indiana University law professor who specializes in international human rights law. Mr. Edwards served as advisory counsel to David Hicks, the Australian detainee released last month to serve a nine month sentence in his home country. The Hicks case was settled via an unusual plea. Mr. Hicks ostensibly pled guilty in order to receive the brief sentence bargained by his attorneys. But his guilty plea was different than one would expect. The court nuanced the plea such that Hicks had only to agree that he believed the military tribunal could prove the charge beyond a reasonable doubt. This was a legal proceeding in which the judge, prosecutors, and defense attorneys were all U.S. military officers. Hicks agreed to the plea, but did not in fact, admit guilt to the charges leveled against him.
I understand that evidence can be unclear in wartime. I understand the argument for preventing enemy soldiers from returning to the fray when our soldiers are at risk. But if this is what we are doing, let’s call a spade a spade. Legal maneuvering to enable illegal action is not befitting to our country’s honor. Utilizing questionable if expedient methods to effect a desired result should not be our modus operandi. The writ of habeas corpus is a fundamental principle recognized by all civilized societies. I hope that the publicity raised by these cases will require our leaders to make well considered, if difficult decisions that will allow these detainees fair processing.
Ann C. Collins, MD
“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Justice Louis D. Brandeis, Olmstead v. United States 277 US 479 (1928)
FAIR USE NOTICE
This blog entry contains copyrighted material (photograph) the use of which has not been specifically authorized by the copyright owner. I am making such material available in my efforts to advance understanding of political, human rights, economic, democracy, and social justice issues, etc. I believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
On June 5th, two military judges dismissed war crimes charges against a pair of Guantanamo Bay detainees because they failed to meet guidelines required by the Military Commissions Act, pushed thru Congress last fall by the Bush Administration.
Now typically, doctors are not known to be cheerleaders for the legal profession, but in this case I’ll give them their due.
Despite the inconvenience caused by the decision, these military judges discharged their duty with honor. They followed the law to the word. And in fact a word was the missing piece. “Unlawful”. The two detainees were classified as “enemy combatants” rather than the required “unlawful enemy combatants”. This decision has refocused the public’s attention to the inconsistencies and problematic nature of the legal limbo that is “Gitmo”.
One of the detainees involved is Omar Khadr, a Canadian citizen. His father, Ahmed Khadr is reported to have been an associate of Osama bin Laden. The Khadr family relocated during Omar’s childhood, first to Pakistan then to Afghanistan. At the age of fifteen, Omar Khadr was captured when U.S. troops attacked an encampment in Afghanistan. Omar Khadr is charged with the death of Sgt. Christopher Speer, an Army medic who died of wounds inflicted by a grenade thrown during the battle. Omar was held in Afghanistan until he reached the age of sixteen and then was transferred to the U.S. prison camp at Guantanamo Bay, Cuba. He is now twenty years old.
As a physician, my training prejudices me to the individual. I worry about the implications of detaining a fifteen year old child, keeping him in solitary confinement during psychologically formative years with no hope of due process. The death of Christopher Speer is a tragic loss, for his family and for our country. But is it a war crime or an act of war? Is Omar Khadr an unlawful enemy combatant?
Another aspect that troubles me is the relative value of this detainee. Was his action more heinous than those committed by others who were detained in their home country? I am uninformed on this count, but a conceivable conclusion might be that his capture raised the opportunity to secure information from the minor child of an associate of Osama bin Laden. Is all fair in war? If one of our own were held in similar circumstances what would be our response? If a fifteen year old American boy were held in conditions that we find sanctionable in Cuba, would we be outraged? Indignant? Would we think our enemy uncivilized?
I was recently fortunate to meet George Edwards, an Indiana University law professor who specializes in international human rights law. Mr. Edwards served as advisory counsel to David Hicks, the Australian detainee released last month to serve a nine month sentence in his home country. The Hicks case was settled via an unusual plea. Mr. Hicks ostensibly pled guilty in order to receive the brief sentence bargained by his attorneys. But his guilty plea was different than one would expect. The court nuanced the plea such that Hicks had only to agree that he believed the military tribunal could prove the charge beyond a reasonable doubt. This was a legal proceeding in which the judge, prosecutors, and defense attorneys were all U.S. military officers. Hicks agreed to the plea, but did not in fact, admit guilt to the charges leveled against him.
I understand that evidence can be unclear in wartime. I understand the argument for preventing enemy soldiers from returning to the fray when our soldiers are at risk. But if this is what we are doing, let’s call a spade a spade. Legal maneuvering to enable illegal action is not befitting to our country’s honor. Utilizing questionable if expedient methods to effect a desired result should not be our modus operandi. The writ of habeas corpus is a fundamental principle recognized by all civilized societies. I hope that the publicity raised by these cases will require our leaders to make well considered, if difficult decisions that will allow these detainees fair processing.
Ann C. Collins, MD
“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Justice Louis D. Brandeis, Olmstead v. United States 277 US 479 (1928)
FAIR USE NOTICE
This blog entry contains copyrighted material (photograph) the use of which has not been specifically authorized by the copyright owner. I am making such material available in my efforts to advance understanding of political, human rights, economic, democracy, and social justice issues, etc. I believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
