The DC Court of Appeals just handed Bush a major smackdown on his terrorism policy - they (may have laid the groundwork for) establishing that there's no such thing as an "Enemy Combatant"
WASHINGTON (AP) — A federal appeals court, in the first case it reviewed, has overturned the Pentagon's classification of a Guantanamo detainee as an enemy combatant.
The court rejected the Bush administration's argument that the president has the power to detain people who never took up arms against the U.S.
This decision probably won't affect insurgent fighters captured on the field of battle, but it could affect non-combatants those captured via informants or surveillance, and following the Supreme Court's recent restoration of Habaeus Corpus, it seems unlikely that they would overturn and reverse this decision - and if taken to it's ultimate conclusion, the implications to the Bush Administration could be devastating.
Ever since 2002 the Bush Administration has used the classification "Enemy Combatant" to deny Geneva Conventions to detainees captured in the War on Terror. They used it to justify "Extraordinary Rendition", secret "Black Site" prisons and to practice Torture in direct violation of War Crimes Provision of U.S. Law. Some of these detainees have been children, while others were literally sold to us by informants - like slaves bought on the auction block. More raw materials for CIA Contractors to "process".
A McClatchy investigation has revealed that an amazing number of these detainees - contrary to claims made by the President, and basically every other Republican including John McCain - are just plain innocent.
The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren't "the worst of the worst." From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there.
Of the 66 detainees whom McClatchy interviewed, the evidence indicates that 34 of them, about 52 percent, had connections with militant groups or activities. At least 23 of those 34, however, were Taliban foot soldiers, conscripts, low-level volunteers or adventure-seekers who knew nothing about global terrorism.
Only seven of the 66 were in positions to have had any ties to al Qaida's leadership, and it isn't clear that any of them knew any terrorists of consequence.
When members of the FBI nearly arrested CIA Interrogators for their treatment of prisoners, the excuse used to keep the FBI at bay was - these are "Enemy Combatants", normal rules of justice and law need not apply.
If this decision is upheld, the Bush Administration will have essentially run out of wiggle room. The entire Military Commissions Process, which was established after the Supreme Court decided in Hamdan v Rumsfeld that the Geneva Conventions essentially apply to everyone involved in a war, will now be in shambles. The hundreds of detainees held at Gitmo and tens of thousands of others being held around the world at placed like Abu Ghraib and Bagram AFB will now either have to be declared Prisoners of War and tried via a Court Martial or charged in Criminal Cases and tried as Civilians.
It's either option A (Military), option B (Civilian) or option C - let those people go. There will soon be no more other options left.
The problem with this is naturally, that coerced confessions are not allowed in Criminal or Military Cases. Confessions obtained under duress are not admissable. The claims that former Gitmo prisoners have come back to fight us again the battle field, is Largely a Myth! In a real court - not this made-up Kangaroo Fiasco we currently have at Gitmo - defendants must be arraigned in a timely manner, you can not hold them indefinitely without charges, the innocent are proctected from the overreach of the state. Oh and Deliberate Abuse - as the President has admitted to authorizing under his "Enhanced Interrogation" Program - is Punishable as a War Crime, particularly when the subject doesn't just feel like their dying in a "simulated" way - at least two dozen of them have actually died (PDF) as a result of these horrifically flawed U.S. policies.
Someone tell McCain that this isn't about making money for Trial Lawyers, all the attorney's at Gitmo - like Former Lt. Cmd Swift who was Sacked for Winning in before the Supreme Court on Hamdan - are in the Military, and most Civilian Attorneys are willing to work on cases like these Pro Bono.
It's called following the Constitution, maybe we should try it again. We just might finally turn back from being a ruthless rogue state to a nation of laws yet.
Read much much more on this ongoing tragedy from the ACLU's Freedom of Information Files.
Update: As Some have noted in the comments this decision may only apply to this particular detainee, or "non-violent" combatants, but since some of the decision remains currently classified exactly what it's full ramifications will be are currently unclear, however what matters is ultimate what the SCOTUS decides and that isn't strictly limited by the DC Appeals ruling. Hamdan only applied to Hamdan (pre SCOTUS), until it didn't (After SCOTUS).
P.S. Bush can't Pardon Himself.