[Wall Street Journal] Contrary to liberal myth, military tribunals aren’t a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday’s decision, the tribunals at Gitmo had earned a reputation for fairness and independence.

As it happens, Mr. [Attorney General Eric] Holder acknowledged their worth himself by announcing that the Guantanamo detainee who allegedly planned the 2000 bombing of the U.S.S. Cole off Yemen and four others would face military commission trials. (The Pentagon must now find a locale other than the multimillion-dollar, state-of-the-art facility at Gitmo for its tribunal.)

Why the difference? Mr. Holder seemed to suggest that the Cole bombers struck a military target overseas and thus are a good fit for a military trial, while KSM and comrades hit the U.S. and murdered civilians and thus deserve a U.S. civilian trial. But this entirely misunderstands that both groups are unlawful enemy combatants who are accused of war crimes, whatever their targets. Mr. Holder’s justification betrays not a legal consistency but a fundamentally political judgment that he can make as he sees fit.

Here’s the latest interview between Dennis Miller and former Guantanamo Bay JAG officer Kyndra Rotunda-Miller. Listen to the whole thing.

Does putting an arsonist into prison only create more arsonists? What about car jackers? Then why does detention for terrorists only propel them to commit terrorism upon their release? It’s an absurd proclamation, yet it is exactly what the Washington Post has spent the past weekend arguing on their front page.

The story regards Abdallah Saleh al-Ajmi, a Kuwaiti captured on the Afghanistan battlefield in 2002, held in Guantanamo until 2005. He was eventually released to Kuwait, but crossed into Iraq and detonated an explosive-laden truck on Easter Sunday, 2008, that killed 13 Iraqi soldiers and wounded 42 others. Thus, the argument goes, recidivist detainees are created by us.

Sunday, February 22, 2009; A01
From Captive To Suicide Bomber;
Accused of Being Little More Than a Low-Level Taliban Fighter, Abdallah al-Ajmi Was Held by the U.S. for Nearly Four Years. After His Release, He Blew Up an Iraqi Army Outpost. Did Guantanamo Propel Him to Do It?

Monday, February 23, 2009; A01
A ‘Ticking Time Bomb’ Goes Off
When Abdallah Al-Ajmi Returned to Kuwait After Nearly Four Years at Guantanamo, His Family Tried to Get Him to Move On. But He Didn’t Want to Let Go.

Both reports are filled with inaccuracies, misnomers and outright falsehoods.

They are also filled with apologies for terrorism, such as, my favorite, a defense that in Afghanistan Al-Ajmi “fired his weapon only one time…” Or, “Before he went to Afghanistan, he was a normal teenager…” So “normal,” that he hung out at firebrand mosques, twice attempted to follow the calling of Jihad, first in January 2001 to try to fight Russians in Chechnya. Then again in March 2001 to try to fight the Northern Alliance in Afghanistan. This “normal teenager” thus twice tried to join Jihad months before the world had heard of 9-11. Thank heavens your local neighborhood kids aren’t so “normal.”

There’s, next, the misnomer “that the United States shouldn’t be holding people incommunicado and that even terrorism suspects should have the right to defend themselves.”

“But there is also a view in some quarters of the U.S. government that cases such as Ajmi’s are the inevitable result of locking up 779 foreigners in an austere military prison, without access to courts or consular representation, and subjecting them to interrogation techniques that detainees say amount to torture.”

The above paragraph is falsehood after falsehood. The fact that of the 800 original detainees there are only 200 remaining in Guantanamo proves that they are not held indefinitely or incommunicado. Every single detainee is given representation and military trials (parole hearings basically). Because it is the military establishment that conducts these — and not our civil law system — the Washington Post feels it can mislead its readers through a technicality into thinking that these detainees are just held in secret forever, throw away the key, with no due process. It’s a lie.

It lacks all context as well. For example, how many Axis POWs were held indefinitely during the Second World War, and in Midwestern work camps no less? The answer: 400,000 German and Italian POWs held in some 500 U.S. work camps. Note: work camp, and no trials, no representation, no parole. The Second World War detainees had even fewer civil rights than our War on Terror detainees.

From this same context, then, U.S. officials had had no idea when the Second World War would end, so was their detention of Germans and Italians likewise abuse or inhumane or torture? This is an important point because the critics demand POW status for detainees, even while the detainees are in fact, right now, being treated exactly as POWs! What’s in a name? It’s the acts that matter. We may not call them POWs, but in fact they are exactly that because we are treating them as such (I would argue against our better judgment).

Regarding representation, there are multi-million dollar law firms lining up to provide Guantanamo detainees with free representation. Try getting such a deal in Kuwait should you pick up an AK and combat the government.

The allegations of torture are pure libel and slander, too. Period. Guantanamo is a military facility, not CIA. The U.S. military has never even waterboarded an individual (torture debatable), as the CIA was the institution that did (not at Guantanamo, and only to three senior members of al Qaeda, all before 2003, and all producing actionable intelligence).

And so we see the watering down, no pun intended, of the definition of torture. Thus, barking dogs (often used in civilian prisons), or disincentives to detainees who injure the prison guards are labeled by the critics as torture.

The bleeding hearts all cite Guantanamo treatment even as they are totally ignorant of our civilian penitentiary system. For example, this related Washington Post article cites the solitary confinement of (only the most dangerous) detainees as harsh or abusive.

“Prisoners in Camp 6 and the highly secret Camp 7 — which holds such high-value detainees as Khalid Sheik Mohammed, the self-proclaimed organizer of the Sept. 11, 2001, attacks — can be held in windowless cells for up to 22 hours a day.”

The article also complains about forced-feeding of detainees starving themselves, even though were the military to take no action and allow the detainee to die while in their care they would be legitimately vilified for it.

Ironically, those who demand the closure of Guantanamo offer as an alternative federal facilities such as Supermax in Colorado, which houses such notorious individuals as the 1993 WTC bomber (Ramzi Yousef), and the Unibomber (Theodore Kaczynski), and prior to his execution, Tim McVeigh, the 1995 Oklahoma City bomber.

This is my favorite aspect to the anti-Guantanamo champions: they don’t realize that the worst of the worst at Supermax are isolated in windowless cells for 23 hours a day! Indeed, a 1999 Justice department report found “that more than 30 states are operating a Supermax-type facility with 23-hours-a-day lockdown and long-term isolation.”

Thus, by this “isolation” standard our CIVILIAN prison system is less humane than Guantanamo. But this should be no surprise, as it rivals even European models. The deputy head of Brussels’ federal police anti-terrorism unit praised Guantanamo in 2006. And from descriptions of Guantanamo officials including the commander of Joint Task Force Guantanamo, former JAG officers (Kyndra Rotunda), and retired high-ranking military visitors, the detainees enjoy treatments better than in most civilian prison models.

Indeed, the only persons being tortured at Guantanamo are the prison guards. A 2006 Pentagon report found some 440 separate attacks on guards by detainees including using “broken toilet parts, utensils, radios and even a bloody lizard tail into makeshift weapons.”

But these truths are not known to the vast majority of the American public because the media machine has its agenda. That agenda includes painting Guantanamo as something it isn’t, no matter how dangerous that agenda is to the next innocent victims of recidivist detainees. Last time it was in Iraq, perhaps next time it will be within the U.S.

From 9-11Families.org:

Friday, Debra Burlingame was among the 40 family members of the 2,975 murdered on September 11 and the 17 sailors murdered aboard the USS Cole who met with President Obama. During the meeting, President Obama was wrong on the law, wrong about what Boumediene v. Bush afforded the detainees held at Guantanamo, and stated the public’s perception about Guantanamo is confused with Abu Ghraib. … There is more.

She spoke with talk-radio host Steve Malzberg this afternoon about the meeting; here is the audio.

Mrs. Burlingame is the sister of Charles “Chic” Burlingame, the pilot of American Airlines flight 77, which hijackers flew into the Pentagon.

And speaking of Guantanamo and our misguided friends on the Left, Yemen announced today that it was going to release 170 al Qaeda suspects. This is relevant considering that of the 200 or so remaining detainees at Guantanamo about half are Yemeni. The Obama administration may release these last 100 to Yemen, which will, no doubt apply their useless catch and release policy towards them. One of the stipulations for release is that Yemen institute a “rehabilitation school” — similar to Saudi Arabia’s — which detainees will have to attend to (somehow) prove they are no longer dangerous prior to earning back their freedom.

The punchline is this Saudi rehabilitation model has already proven to be a joke. The Kingdom recently published a list of its 85 most-wanted jihadis, which included 11 former Guantanamo detainees and rehabilitation graduates.

(LWJ adds that of these 11 my include Abdullah al Qarawi, who for three years has reportedly operated a large al Qaeda cell inside Iran, presumably with Iranian knowledge considering their security services would have to be aware. But that’s another story).

To date, the Pentagon has positively identified more than 60 former Guantanamo detainees — including al Qaeda high commander Said al-Shihri — who have returned to committing acts of terrorism.

Should one of the men that the administration releases end up killing more Americans, President Obama may have a more difficult time the next time he meets with the families of terrorism victims.

I’ve been meaning to post these podcasts of interviews from Dennis Miller’s and G. Gordon Liddy’s radio show with two former military officers who served at Guantanamo — JAG officer Maj. Kyndra Rotunda (here (or here), & here) and Col. Gordon Cucullu (here).

Maj. Rotunda-Miller is author of Honor Bound: Inside the Guantanamo Trials. (I’ve read it, and it is likewise eye-opening). Maj. Rotunda’s arguments are very persuasive and she notes what a legal minefield Obama is stepping in with his plans to shut down Guantanamo Bay.

Col. Cucullu is author of Inside Gitmo: The True Story Behind the Myths. It’s on my list to read.

The interviews are truly educating, and run contrary to just about everything you’ve heard about Guantanamo Bay from our mainstream media. Be sure to check them out.

This article underscores how weak is the argument that the U.S. through the tribunal system doesn’t provide captured terrorists the proper civil liberties. Khalid Sheik Mohammed is the unapologetic, indeed braggart, mastermind of the 9-11 attacks. It’s bad enough that this fiend still has a pulse, let alone that the debate over his treatment includes such ridiculous notions as whether or not he had a padded seat cushion. I can imagine that the families of 9-11 victims are just sickened by this.

[Washington Post] At the 9/11 hearing Monday, the defendants gave no indication that they were aware of any pending decision by [incoming President Barack] Obama. But the proceeding was again marked by interjections from Khalid Sheik Mohammed, who asserted responsibility for organizing the attacks, as he has in the past, but with an apparent dig at his ostensible boss.

“I am the mastermind of 9/11, not Osama bin Laden,” Mohammed said during argument over whether the case needed to be re-arraigned because of a technical error by Susan Crawford, the Pentagon official charged with deciding who goes to trial at Guantanamo. The judge ruled that the case could go forward despite the error.

Mohammed also waved a copy of The Washington Post containing an article by Bob Woodward in which Crawford said another detainee was tortured at Guantanamo Bay. The matter arose during a discussion about an order signed by the judge to protect classified information, which the defense said was too broad.

One of the defense attorneys argued that the order would prevent them from discussing the article containing Crawford’s statements or any public document that referred to the CIA or other intelligence agencies.

“Everybody knows this order was written by the CIA,” Mohammed said. “Their true reason is to protect themselves against their own wrongdoing.”

During the discussion, a civilian lawyer advising Mohammed noted that his daughter lives in Iran and has tuberculosis. He said the order prevented his passing information to Iran that Mohammed had provided about his family’s medical history because defendants’ statements are presumptively classified. The judge said he might amend the order.

Relatives of the victims of the Sept. 11 attacks attended proceedings for the second time, and some of them were struck by the minutiae that came up in court.

At one point, Mohammed disputed a claim by the prosecution that cushions were provided to the defendants to compensate for the time they spent sitting on hard benches in a van that takes them to court. “It’s not true that they put cushions,” Mohammed said.

You can tell it’s a slow news day when the Washington Post, et. al., runs another “Torture!” story.

Not a hair on a detainee has been touched since 2003/2004, but that won’t stop the mainstream press from repackaging as “Breaking News!” a rehashed interview or government report. In this case it regards Mohammed al-Qahtani, a Saudi conspirator in the 9-11 attacks.

He was interrogated from November 2002 to January 2003 (which is in part why it’s galling for them to run this on page 1), and is admittedly dangerous, categorized as such by than none other than the official who has now levied the torture charge — one Judge Susan J. Crawford.

Of al-Qahtani, Crawford stated, “There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001… He’s a muscle hijacker. . . . He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’”

Okay, so he’s admittedly “very dangerous,” was involved in the 9-11 plot and our officials were under great pressure early on to discover what he knew.

So what was the alleged torture?

“For 160 days his only contact was with the interrogators.”

And,

“Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister. At one point he was threatened with a military working dog named Zeus, according to a military report. Qahtani “was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation” and “was told that his mother and sister were whores.” With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks,” the report shows.

In other words, he was treated as the unlawful combatant (i.e., a terrorist) that he is.

Insults to his mother and sister? The horror, the horror! Made him wear a woman’s underwear? Well, we certainly wouldn’t want to insult his misogynist religious extremist mindset! (By the way, THIS is torture).

He wasn’t even waterboarded (which thousands of U.S. soldiers every year endure as part of their S.E.R.E. – Survival Evasion Resistance Escape – training.)

The report claims his resting heart rate fell to 35 beats per minute, which short of being a professional athlete (who commonly hit that mark due to their athletic training), could be dangerous, although apparently there is no further detail on this.

Nonetheless, I have a problem with making analogies between our soldiers and terrorists; between our treatment of terrorists and the tactics of terrorists.

Crawford falls into that very analogy trap:

“If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.”

This is a ridiculous argument. Jihadists will, at the drop of a hat, cut the head off of a civilian like Daniel Pearl or Nick Berg (let alone a soldier), and won’t for one second stop to consider how the West treats their captives. We could give them a lifetime’s worth of Korans and soccer balls (which we do at Guantanamo) and it wouldn’t change their murderous tactics one iota. For that matter, unlawful combatants murdered Leon Klinghoffer 15 years before the world had ever seen 9-11, Abu Ghraib, Guantanamo Bay, and so on. Today, it’s not what we do, but what we are that enrages Islamic extremists.

For the jihadist, it doesn’t matter how we treat their captives. It does matter, conversely, that we not equate, whether in legal terms or in treatment, our lawful soldiers — who follow a moral code of war — to their unlawful soldiers — who do not.

The point of Geneva Conventions and other similar protections are to provide an incentive for uniformed soldiers to not act as bandits. If we treat bandits and terrorists in the same fashion we treat lawful soldiers we remove that incentive. We make it more likely that Cpl. So-and-so, guarding a checkpoint, will just blast away at the oncoming car, rather than take the time to determine whether a threat exists or not. For that matter, why bother giving our soldiers uniforms, or having command structures. Since we’re all equal (and equally protected) we’ll just create our own little terror cells, we’ll strap suicide vests onto our soldiers and send them out as they do.

Albeit often with good intentions, the Judge Crawfords of the world, by watering down the definition of torture or making parallels between our lawful fighters and terrorists, actually make the world more dangerous, not less.

Judge Crawford would be advised to talk to Maj. Rotunda-Miller.

A few years ago and without merit, people started claiming torture at Guantanamo Bay.

Among the citations was a charge by the International Committee of the Red Cross, who cleverly worded their accusation as “tantamount to torture.” In her book Honor Bound: Inside the Guantanamo Trails, former JAG officer Maj. Kyndra Rotunda-Miller explained that to justify this curious definition the Red Cross applied to the U.S. treaties that it has never actually ratified:

The allegation is a strange one because the ICRC never clearly defined what it meant by “tantamount to torture.” The ICRC stopped short of claiming torture, but clearly fabricated their charge for high immediate impact. Beyond the vagueness of the charge, it was inconsistent too. If the ICRC believed that the conditions were deplorable, why did they raise menial issues like speeding up the mail and purchasing checker board games for detainees? Why did the ICRC ask for more skittles candy and softer soccer balls if they really believed detainees were being tortured?

Not only does the ICRC inaccurately interpret Geneva conventions, but it relies on provisions that the US has never approved. For example, the ICRC states as law Protocol 1 — proposed in 1977 but never ratified by the United States, Protocol 1 extends POW protections to persons who do not qualify to be POWs. The United States follows the Third Geneva Convention, which only gives POW protections to people who qualify — legal combatants who wear uniforms and follow the laws of war. Otherwise why would the US military or any other legitimate military bother to follow the laws of war? Why would they not simply adopt less risky terrorist tactics? The ICRC argues that 150 countries have ratified Protocol 1. Curiously, however, countries experienced with terrorism [Israel, the U.K.] have either refused to ratify the protocol or have done so with several caveats.

In other words the charge is baloney. Maj. Rotunda-Miller adds that other critics mistakenly identify waterboarding, but she retorts that the waterboarding was conducted by the CIA, not the military, on three high-ranking members of al Qaeda (Khalid Mohammed, the 9-11 mastermind, Abu Zubaydah, and Abd al-Rahim Nashiri), and not at Guantanamo (which thus destroys the argument that torture occurs at Guantanamo.

That’s some history, and perhaps a little too deep. But I wanted to set that up before highlighting this Washington Post article.

The Guantanamo critics are back, but this time they’re charging that Guantanamo officials are too lenient! Security conditions are so lax at Guantanamo (and a far, far cry from the accusatory harsh conditions the antiwar left) that detainees were able to commit suicide with relative ease.

[Wash. Post] Contained in more than 3,000 pages of military investigative documents, medical records, autopsies, and statements from guards and detainees is a rare view inside the detention center at Guantanamo Bay, Cuba, and one of the worst episodes of its six-year history. The documents from the NCIS investigation, which will be released under the Freedom of Information Act, were obtained yesterday by The Washington Post.

They make clear that that [Ali Abdullah Ahmed Naser al-Sullami] Sullami, along with Saudis Yasser Talal al-Zahrani, 22, and Mana Shaman Allabard al-Tabi, 32, carefully planned their suicides so that they would be able to prepare and carry them out without their guards taking notice. Investigators and military officials believe, according to the documents, that other detainees were aware that the suicides were about to happen and at one point chanted a song called “Kill Them All” — used by al-Qaeda and the Taliban after killing Americans — possibly to mask the sounds of death on the cellblock.

Investigators found that guards had become lax on certain rules because commanders wanted to reward the more compliant detainees, giving them extra T-shirts, blankets and towels. Detainees were allowed to hang such items to dry, or to provide privacy while using the toilet, but were not supposed to be able to obscure their cells while sleeping.

Guards told officials that it was not unusual to see blankets hanging in the cells and that they did not think twice when they passed several cells on the night of June 9, 2006, with blankets strung through the wire mesh. Authorities believe the men probably hanged themselves around 10 p.m., but they were not discovered until shortly after midnight on June 10.

Amazing. The critics can’t make up their mind. “They’re torturing… no wait, they’re too easy!”

This politically correct atmosphere is just what former JAG Maj. Kyndra Rotunda-Miller talked about.

[Maj. Rotunda-Miller] Detainees at Guantánamo Bay will sometimes throw urine, or spit upon, the military prison guards.

The reason that detainees continue behaving badly is because the Army does not have a disciplinary system to hold them accountable for crimes they commit while detained. There is no disciplinary system in Guantánamo, except for prison guards guarding the detainees.

However under the Third Geneva Convention (article 39, chapter 6) an entire chapter is devoted to camp discipline. “The prime purpose of measures of discipline is to ensure that the prisoner of war remains in the hands of the detaining power, so that he can neither do harm to that power within the camp, nor by escaping being able to take up arms again. It must not be forgotten that his life has been spared only on the condition that he is no longer in danger to the enemy.” Under the Geneva conventions, detainees are even required to salute the detaining Powers. But this never happens at Guantánamo Bay.

Detainees who break the rules under the Geneva conventions are subject to discipline the US has a right to bring detainees to trial and sentenced them for crimes committed against US prison guards at Guantánamo Bay. Under the Geneva conventions, the US could apply different disciplinary sanctions including fines, a limitation of privileges, duties that cause fatigue, and confinement. But this never happens at Guantánamo Bay.

Some detainees monitor guards and doctors, and make weapons. Detainees are resourceful. They have used [for weapons] springs from the faucets, broken light bulbs, and used fan blades as weapons. The incidents [had] risen to eight per day. In one year, detainees stacked victims with homemade knives 90 times, including cutting the doctor administering aid. Now, doctors wear body armor when you treat detainees. Detainees have faked suicide and attack the prison guards in Guantánamo Bay [who came into the cell to investigate]. In 2006, one detainee used sheets attached to the ceiling. A guard thought the detainee was attempting to commit suicide and called for assistance. When prison guards entered the cell, and countered a slick floor from feces, urine and soapy water that calls them to fall. The detainees then attacked the guards.

Once the commander of Guantánamo Bay, Admiral Harry Harris, found prescription pills in the binding of a Koran. The guards did not find this because the military for bids them from touching detainees Koran’s.

It’s likely that the incidents above could be contained in the report that the Washington Post published today, but it’s obvious in failing to mention the attacks, among other things, that the media bears much of the responsibility for the lax atmosphere at Guantanamo.

If there’s torture going on at Guantanamo, it’s the detainees torturing our military guards.

Here’s an excerpt about the Hamdan verdict — basically a revolting sentence of time served — written by Andrew McCarthy, the former federal prosecutor of Blind Sheikh Omar Abdel Rahman and the 1993 WTC bombers.

In Hamdan’s case, we thus have a double problem. First, the jury of military officers somehow decided that material support to our enemies, by a guy who actually protected bin Laden and transported weapons for al-Qaeda, was worth only five-and-a-half years in jail. Second, the judge then made matters incalculably worse by effectively giving Hamdan what everyone (including the judge) must know will be taken as a get-out-of-jail card: i.e., full credit for the five years Hamdan has already been in custody as an enemy combatant. That turns the 66 months into six months.

Understand: there is no requirement to try captured enemy combatants for war crimes. As the laws of war have long provided, and as the Supreme Court has recently reaffirmed, wartime enemy combatants may be held without trial for the duration of hostilities. War crimes charges are an additional measure against combatants who commit egregious law-of-war violations.

Yet, that distinction has been lost in the media’s coverage. Absurdly, Hamdan is now in a better position as a convicted war-criminal than those who have merely been detained as enemy combatants without war crimes charges. The American military has managed to value terrorist war crimes as a less serious impropriety than terrorist war participation. Instead of highlighting Hamdan’s conviction, the government will now spend its time explaining why he is still being held after his sentence is over.

McCarthy’s point about the right of countries to hold war prisoners for the duration of the war is underscored by the fact that the Geneva Conventions gives the detaining country that power — a point certainly lost among the public and media.

In her book, Honer Bound: Inside the Guantanamo Trials, former Guantanamo Bay JAG officer Maj. Kyndra Rotunda-Miller emphasized this cart before the horse approach:

[Rotunda-Miller]: Under the law, the US can hold enemy combatants until the end of hostilities. If detainees are tried during the war, convicted detainees could conceivably complete their sentences and been released before the war is over and ironically before enemy combatants who were not prosecuted for war crimes are released. Furthermore, defense attorneys will not be interested in plea-bargaining for eight shorter seconds without knowing one that sentence will begin to run due to the fact that we have no idea won a war will end.

So long as we are at war with terrorists, perhaps the US has more to lose than gain by trying detainees in Guantanamo Bay. Simultaneously fighting a war and prosecuting war criminals simply does not work. Ordinarily [as in the Nuremberg trials] we prosecute war criminals after, not during the war.

Well, it’s the first of many tribunals. As Michael Navarre noted yesterday, perhaps it’s best that they began with a small fish like Hamdan to get the kinks out of the system prior to going after an unrepentant boastful killer like Khalid Sheik Mohammed.

Here’s an interesting note from the WSJ law blog:

[Military justice expert Michael] Navarre also believes that, given Judge [Navy Capt. Keith] Allred’s jury instruction, the not guilty verdict on the conspiracy charge could mean tough-going for the prosecution in future detainee cases. Judge Allred instructed the Hamdan jurors that, to convict Hamdan of conspiracy, they had to find that his actions were directed towards engaging civilians or other protected targets, such as soldiers removed from the battlefield due to injury or religious personnel.

“If the Hamdan case sets precedent for defining when a detainee conspired to commit a violation of the law of war, the government may have a difficult time proving conspiracy charges against all but the top level detainees,” said Navarre. “Smaller players, whose only involvement was battlefield contact with U.S. forces, may not have committed offenses within the instruction given by Judge Allred.”

What this means is that far from the cries of misjustice, the Guantanamo trials provide far more due process than any military tribunal before it.

It’s a point underscored by Major Kyndra Miller-Rotunda, a former Judge Advocate General (JAG) officer who served three tours of duty, including one at Guantanamo Bay, Cuba, in Joint Task Force (JFT) 160 — which conducted interrogations of detainees — and another as a prosecutor at the Office of Military Commissions. I just finished reading her book on the experience, titled “Honor Bound: Inside the Guantanamo Trials.”

I first heard the name Major Kyndra Miller-Rotunda while listening to the Dennis Miller radio show, and what she said caught me off guard.

According to Maj. Rotunda, the detainees at Guantanamo Bay received better treatment than were demanded for Prisoners of War (POWs) by the Geneva Conventions (which, technically, and for solid reasons, the Bush administration had previously declined to grant members of the Taliban and al Qaeda).

I, in the words of a caller to the Miller show, “learned more about the subject of Guantanamo detainees in five minutes” than I had in seven years of self-education on the subject from countless news articles and commentaries.

Here’s another example, that’s almost verbatim from Maj. Rotunda-Miller’s book, in which the Guantanamo detainees receive better treatment and process than not only past POWs, but better than European citizens and sometimes better than U.S. citizens, including those in our federal penitentiary system:

[Maj. Rotunda-Miller]: Under civilian law, it is illegal for two or more people to plan a crime even if they are ultimately unsuccessful in the attempt.  U.S. law makes the agreement of the crime itself a crime.  The steps for committing this crime are known as “overt acts.” 

However the law that applies to detainees at Guantánamo Bay is more stringent than conspiracy laws that apply to U.S. citizens. Prosecutors at the Office of Military Commissions [OMC] applied there own definition of conspiracy by requiring that the particular detainee himself commit the overt act. 

Under this strange definition, the detainee could conspire to commit another September 11 attack with members of Al Qaeda and not be held liable for his role in the conspiracy unless prosecutors prove that the detainee himself took steps toward carrying out the attack. 

Therefore, rules that apply to U.S. civilians to commit conspiracy crimes are more likely to result in criminal convictions than those applied to detainees held at Guantánamo Bay. 

Indeed, the United States Congress, in the wording of the Military Commissions Act of 2006, labeled conspiracy as any person “who conspires to commit one or more substantial offenses triable by military commissions under this chapter, and who knowingly does any overt act to effect the object of the conspiracy…”

Therefore the U.S. Congress has made clear that alleged terrorists in Guantánamo Bay are much harder to convict on conspiracy charges in U.S. citizens — prosecutors must prove that the particular detainee himself “knowingly” committed an overt act.

It is ironic, adds Maj. Rotunda-Miller, that Hamdan, a now convicted terrorist, gets better trial and treatment than did the convicted soldiers, including Lynndie England, charged for heinous acts at Abu Ghraib.

Adds Lt. Col. Fred Frost(ret.) of the USMC:

The Uniform Code of Military Justice and military courts are acceptable for our own military personnel accused of transgressions but not for perpetrators of war crimes and terrorism. If military courts are fair and balanced enough for our serving sons and daughters, why are they not adequate for our sworn enemies?

Why indeed.

Rather than continue with what would be an incredibly long post I’m instead going to add more updates from my education by Maj. Rotunda-Miller in the days and weeks ahead. You can search on the tag Major Rotunda-Miller.