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The Bush administration could have saved itself a lot of grief, and the United States a lot of embarrassment, by adhering to the Geneva Convention and other treaties on the treatment of prisoners of war.
But, instead, the administration decided that prisoners taken in the war on terror, principally in Afghanistan, would be tried by a special process it threw together for that purpose. The first try was nothing but a kangaroo court. Since then, the system has been through several refinements and, five years later, it still doesn't work.
There has been only one conviction, and that a plea bargain leading to the defendant's serving a nine-month sentence in his native Australia.
This week, military judges in Guantanamo Bay, Cuba, threw out the charges against the second and third detainees to be tried under the revised Military Commissions Act for trying suspected unlawful enemy combatants.
The reason: Because of discrepancies in the law, the panels reviewing the status of the two detainees never officially found them "unlawful."
The Pentagon is treating this as a technicality, and it could theoretically be remedied by reconvening the Combatant Status Review Tribunals and having the detainees declared unlawful combatants, thus reinforcing the world's impression that the whole thing is rigged.
Some in Congress are thinking about revisiting the commissions act it passed in haste last year. And lawmakers should, at the very least, restore the basic right of habeas corpus that Congress and the Bush administration saw fit to deny the detainees.
But the commissions and tribunals may now be too tainted to salvage.
Marine Col. Dwight Sullivan, the chief military defense lawyer at Guantanamo, asked, "How much more evidence do we need that the military commission process doesn't work?"
There are options: The civilian criminal courts or, better yet, courts-martial under our existing military justice system, which, by the way, is what the Geneva Convention calls for in the first place.