War crimes trials at Gitmo to resume

NY Times:

A special military appeals court, overturning a lower judge, last night removed a legal hurdle that has derailed trials for detainees at Guantanámo Bay, Cuba.

The ruling allows military prosecutors to repair a legal flaw that had ground the prosecutions to a halt. The decision, by a three-judge panel of a newly formed military appeals court, was an important victory for the government in its protracted efforts to begin prosecuting some of the 340 detainees at Guantánamo.

The legal flaw involved a requirement by Congress that before the detainees could be tried in military tribunals, they had to be formally declared “alien unlawful enemy combatants.” The problem for prosecutors was that while the detainees had been found by a military panel to be enemy combatants, they had not been specifically found to be unlawful.

Under the ruling, prosecutors will be able to present new evidence to the tribunals to support their claim that a detainee was an unlawful combatant. Until now, only one case has been resolved, that of an Australian citizen who accepted a plea deal in March.

The legal flaw was cited in June by a military judge, Col. Peter E. Brownback III, in a ruling dismissing charges against a detainee.

The question of the detainees’ formal status has stalled the entire hearing system and frustrated administration officials.

The three appeals judges said yesterday that Colonel Brownback had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. The appeals court sent the case back to Colonel Brownback for further consideration.

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Proving these guys were "unlawful" enemy combatants is a relatively simple job. No al Qaeda fighter meets the Geneva Conventions requirement for wearing an identifying uniform. They all attempt to camouflage themselves as civilians putting all civilians at risk. Most of them deliberately target non combatants too. It appears that the judge at best was operating out of an abundance of caution, because he knew what ever decision was made on the merits would be appealed and he wanted to get this issue resolved first.

I am still not a big fan of trying these guys. It is not because I don't think they are guilty of war crimes, I just think the more prudent course is to hold them for the duration of the conflict and not expose the evidence we have against them in a way that may get back to the enemy and help him avoid future capture.