Have Gitmo Judges Soured on War Tribunals?


LINE IN THE SAND

What do John Ashcroft, Michael Luttig, Alberto Mora, David Petraeus, Robert Gates, Peter Brownback, and Keith Allred have in common? They are all lifelong conservatives and/or belt-and-suspenders, longtime military officers who were willing to both follow and, in their own ways, lead President Bush's "war on terror." Until, at least, each in his own way felt compelled to say, "Enough."

By far, the most stunning aspect of the dismissed charges against Omar Khadr and Salim Ahmed Hamdan­the only two Guantanamo detainees staring down the barrel of a military trial­was that the two military judges in the cases (not one but two, mind you) dismissed them sua sponte, that is to say, without significant briefing or argument from the defense. (It does appear that Hamdan made a motion to do so, but only immediately after Army Col. Peter Brownback had ruled in Khadr's case.) That two military officers­Brownback and Navy Capt. Keith Allred­devised their own rationales for dismissing the charges is an astonishing development. They could have readily allowed these two trials to go forward; it would not have been difficult for them to construe the Military Commissions Act to provide them jurisdiction, especially if they had simply deferred to President Bush's 2002 determination that all associates and agents of al-Qaida are automatically "unlawful" enemy combatants. Instead, the two judges took it upon themselves to tell the Pentagon to go back to the drawing board and prove that these defendants were not only combatants, but that they had acted unlawfully­or else the tribunal does not even have jurisdiction to go forward with their war-crimes trials.

In the coming weeks, we may well learn that Brownback and Allred drive Volkswagen buses and wear love beads. But I doubt it. More likely, we'll learn that they are among the many, many highly conservative legal and career military professionals once willing to follow this president wherever he led them, until suddenly one day when they were not. And just as John Ashcroft and James Comey have recently become the very unlikely poster boys for going toe-to-toe with this president, my guess is that Brownback and Allred were similarly using yesterday's proceedings to draw a line in the sand.

 


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