Sunday, June 22, 2008

JAG: "Supreme Court Ruling Puts Soldiers at Great Risk"   [J. Peter Pham]

In a Chicago Tribune op-ed published Friday, Army Maj. Kyndra Rotunda, a former legal advisor at Guantanamo and prosecutor with the Office of Military Commissions, argues that because of the latest Supreme Court ruling on the terrorist detainees, "military commanders must justify battlefield captures and prove to a U.S. judge that decisions they made on the ground—in a faraway land during a battle—were justified" and thus the decision "puts American troops at risk and will lead to more U.S. deaths on the battlefield because it makes it more difficult for soldiers to detain the enemy."

Rotunda, who is the author of the recently published Honor Bound: Inside the Guantanamo Trials (currently #2 on Amazon.com's international law list), notes that "the court has no reason to step in" since, under the system enacted by Congress and signed into law by President Bush, "detainees held in Guantanamo Bay receive more rights than POWs under the Geneva Conventions"—a fact which Chief Justice John Roberts acknowledged in his dissent when he observed that the rules struck down by Justice Anthony Kennedy and the four justices who joined him were "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Drawing on her personal, legal, and military experience—on the last, incidentally, she has served more years in uniform that the court's majority combined (the sum total of military service by the Boumedienne Five amounts to Justice Stevens's nearly four years of World War II naval service and a one-year stint that Justice Kennedy served in the California National Guard his first year out of law school)—Rotunda writes:

As a JAG officer (a lawyer) in the Army Reserves, I have been deployed three times in the global war on terror. I was a legal adviser in Guantanamo Bay and a prosecutor at the Office of Military Commissions. I have seen the procedures that Roberts discusses—and the conditions at Guantanamo Bay—firsthand. The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process. The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative.

And what happens when the U.S. decides that a detainee is an enemy combatant? The detainee stays at Guantanamo Bay. But the digs aren't bad. Detainees enjoy up to 12 hours of recreation time a day where they can play sports like Ping-Pong, basketball and soccer. They can work out in the exercise room, take various classes, garden, watch videos and go to the library. They are guaranteed eight hours of sleep every night and 20 minutes of uninterrupted prayer time five times a day. Guards can't interrupt detainees during prayer times, even if they're not praying.

The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it. At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber.

The problem isn't that the U.S. is releasing too few detainees—it is releasing too many.

Rotunda concurs with the sentiment expressed by Justice Antonin Scalia in the concluding sentence of his dissenting opinion: "The nation will live to regret what the court has done today."

06/22 12:07 PMShare