Which Model Gitmo or Ft. Dix?

Above is a sketch of the military commission trial of Salim Hamdan.

As the trial of five men accused of planning to attack Ft. Dix got underway last week, the New York Times reported the White House will let the next President decide what to do with those detained at Guantanamo Bay. The coincidence highlights two very different angles on counterterrorism.

"The administration is now proceeding on the assumption that Guantánamo will remain open not only for the rest of Bush's presidency but also well beyond, the officials said, as the site for military tribunals of those facing charges for terrorism-related crimes and for the long prison sentences that could follow convictions," the Times reported on October 20.

"The new president will gnash his teeth and beat his head against the wall when he realizes how complicated it is to close Guantánamo," the Times quoted an unnamed administration official as saying.

Part of the issue is the continued lack of legal consensus on a definition for enemy combatant. On Wednesday Federal Judge Richard J. Leon, presiding over a habeas corpus hearing for six Gitmo detainees, complained, ""I don't understand, I really don't, how the Supreme Court made the decision it made and left that question open. . . .I don't understand how the Congress could let it go this long without resolving" it." (More from the Boston Globe)

No such controversy complicates the trial of the Ft. Dix defendants. The men are charged with attempted murder, conspiracy to murder uniformed military personnel, and weapons offenses.

"Their motive was to defend Islam. Their inspiration was al-Qaida and Osama bin Laden. Their intent was to kill members of the United States armed services," Deputy U.S. Attorney William Fitzpatrick told the jurors according to the Associated Press.

According to the Philadelphia Inquirer, "Six suspects were originally charged in the Fort Dix case. One, Agron Abdullahu, 25, a baker in a ShopRite store near Williamstown (NJ), pleaded guilty to a conspiracy charge, admitting he had given weapons to three of the other defendants. He was sentenced to 20 months in prison."

"The five other defendants, charged with the more serious offense of plotting to kill soldiers, are brothers Dritan Duka, 29, Shain Duka, 27, and Eljvir Duka, 24; Mohamad Shnewer, 23; and Serdar Tatar, 24. The Dukas and Shnewer are from Cherry Hill. Tatar is a former Cherry Hill resident who was living in Philadelphia when he and the others were arrested."

"Shnewer, who was born in Jordan, is a U.S. citizen. Tatar, born in Turkey, is a legal resident immigrant. The Duka brothers, ethnic Albanians from what is now Macedonia, have been living in the country illegally since arriving as young children by way of Mexico in the late 1980s."

The legal action taken against the five is "a type of pre-emptive prosecution that has grown more common in U.S. terrorism cases since the Sept. 11, 2001, attacks," according to the Associated Press. "Prosecutors are trying to prove not only that they arrested the right men, but that the suspects were planning a crime. Defense lawyers are likely to argue that while their clients may have spoken ill of America and even rooted for terrorists, that does not mean they intended to kill soldiers. They will also question the character, motives and role of two paid government informants who made hundreds of hours of secret recordings that form the bulk of the evidence in the trial."

The trials of alleged terrorists at Guantanamo have been slow to proceed as wrangling continues over their legal status and the sufficiency of due process. In August seven years after Gitmo received its first inmates, Salim Ahmed Hamdan was the first one convicted. The verdict was that he had provided material support for terrorism.

At least four military prosecutors have resigned their Guantanamo cases. According to the Los Angeles Times in September Lt. Col. Darrel J. Vandeveld explained his resignation being the result of a military commissions process so dysfunctional that it deprives "the accused of basic due process and subjects the well-intentioned prosecutor to claims of ethical misconduct."

Due almost certainly to Vandeveld's resignation on Tuesday charges were dismissed against five Guantanamo detainees.

In a book published late last winter Philip Bobbitt anticipated these controversies. He wrote, "The states of consent must develop rules that define what terrorism is, who is a terrorist, and what states can lawfully do to fight terrorists and terrorism… We must do this because an open society depends upon a government strong enough and foresighted enough to protect individual rights. If we fail to develop these legal standards, we will find we are progressively militarizing the domestic environment without having quite realized that we are at war. And, when a savage mass strike against us does come, we will react in a fury that ultimately does damage to our self-respect, our ideals, and our institutions."