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Making the decision to close Guantanamo Bay without any real plan for dealing with the prisoners demonstrates the pervasive lack of understanding policymakers and the public have about the entire system. There are many gross misconceptions about the differences between trials of the Gitmo prisoners in military tribunals and criminal trials in the U.S., but few people understand them. And if the people don’t know these differences and state their opinions, additional Americans may die as a result of the presidential order about Gitmo.

Much has been made about the inmates being held indefinitely and without trial, but this is actually par for the course during wartime. Uniformed soldiers from the other side are routinely held until the end of the war with no trials, no lawyers. This is part of the Law of War.

Another misconception is that the Geneva Conventions apply to the Gitmo prisoners, but that is not the case. There are four Geneva Conventions, which elaborated on and followed the Hague Conventions, in turn based on the Law of War. All of these exempt “illegal combatants” from coverage. For individuals to be covered under the Conventions, they must wear a uniform, be part of an organized unit, carry weapons openly and not hide among the civilian population.

There is a proposal – put forth by several Islamic nations – that would allow fighters who don’t wear uniforms and who hide among civilian populations to be covered under the Conventions, but the United States has not signed that protocol.

Traditionally, when captured behind enemy lines in civilian clothes, illegal enemy combatants were subject to being shot on sight as spies. If there was a question about what their status was, they were entitled to a “drumhead” trial (now called a military tribunal). This was a quick and simple process. Hearsay evidence was admissible. The accused had no right to counsel, but usually had an officer of the army that captured him as his advocate.

The Supreme Court has upheld this procedure as being legal and appropriate for illegal enemy combatants, reaffirming it as recently as the 2006 Hamdan case.

So, what happens if these inmates instead get a civilian trial? First, they get a citizen jury, and if one juror turns squeamish, the defendant gets off. Second, hearsay evidence, or evidence gained by “unusual” methods, gets thrown out, and the defendant can get off. Third, the defense lawyer can push the government into a corner where it must choose between revealing how it gathers intelligence or give up that evidence, and the defendant, again, gets off scot-free.

The American press has done an incompetent job of explaining the huge differences between a military tribunal and a standard criminal trial. Yet, one fact that has been reported demonstrates that difference. The planner of the 9/11 attacks has tried twice to confess in his Gitmo trial. His plea of guilty had not been accepted when his military tribunal was shut down because of President Obama’s order.

Here’s the clincher. The mastermind of the 9/11 attacks will never be tried for any of those 3,000 deaths because of problems with how the evidence was gathered. Never. He will be tried for prior charges for a prior event. In the meantime, his attorneys will run a circus trial on TV. That’s one more difference between a military tribunal and a normal criminal trial. Only the latter are open to the press.

The issue is not whether these prisoners can be safely held somewhere in the U.S. It is not whether they can be held for the duration of the war. It is whether these defendants can tie the courts in knots, beat the rap and return to the battlefield to kill more Americans, because the wrong legal decisions about their internment and trials were made here in the U.S.

There is a very real chance that more Americans, perhaps tens of thousands of Americans, will die as a direct result of the presidential order that was signed this week, unless the review to come in the next year makes the president decide not to carry through on that order.


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