International Rights Violations at Guantanamo Bay

By Steve Saraquse

Beginning in a District of Columbia district court and winding up in front of the US Supreme Court, Hamdan v Rumsfeld is a precedent-setting legal case that redefines the legality of the proceedings at the Guantanamo Bay camps, and spells out the rights the military must give to prisoners being held under suspicion of terrorism. This case directly led to the Military Commissions Act of 2006, which gave the executive branch the power denied it by the judiciary.

The case deals with the use of military commissions to try enemy combatants not formally imbued with prisoner-of-war status. These prisoners are in a shady area, legally peaking, as it had not yet been decided what parts, if any, of the Geneva Conventions or other international or US laws apply to them. In Hadman v Rumsfeld, the Supreme Court ends up reversing the ruling of a lower court of appeals, deciding that the military commissions were illegal under the existing Uniform Code of Military Justice and the Geneva Conventions. It also decided that enemy combatants were assumed to have rights under the Third Geneva Convention until judged under it not to be prisoners of war.

Salim Ahmed Hamdan, the plaintiff, was a citizen of Yemen, scooped up during the fighting in Afghanistan in 2001. Sometime in 2002, he was transferred to the Guantanamo Bay Naval Base’s camps in Cuba for holding, without being formally charged with anything until 2004. In 2003, he would be designated for trial by military commission, according to President Bush’s Military Order from November 13, 2001 tht made this allowable for foreign nationals suspected of terrorist activity. Legal counsel was not provided for him until December of 2003, and when the provided counselor petitioned for charges and Hamdan’s speedy trial under the Uniform Code of Military Justice, he was at first denied, and told the UCMJ didn’t apply to prisoners with Hamdan’s status.

After being charged by the military commissions with offenses, including murder and attacking civilians in conjunction with working directly with Osama bin Laden as bodyguard and driver, Hamdan was first seen by the District Court of the District of Columbia under Judge James Robertson in 2004. Robertson ruled that until Hamdan’s status under the law of war was decided, he was entitled to Geneva protections. The military commission did not meet Geneva requirements for a fair trial. The defendant could be forbidden to see evidence used to convict him, the defendant’s lawyer could be forbidden to discuss things with him, and almost any evidence was admissible, including statements obtained through torture and hearsay.

The case next went to a Court of Appeals for the District of Columbia and was seen over by Judge Arthur Randolph, Stephen Williams, and Supreme Court Justice John Roberts, Jr. This three-judge panel unanimously overturned Robertson’s original ruling. The ruling was that since Geneva was a treaty between nations, its violation could not be remedied by lawsuits to halt governmental or military functions, only by renegotiation between two or more nations. In addition, non-state group members such as al-Qaeda affiliates were held as not to be covered under Geneva. This was the major distinction they made for prisoners held as part of the war on terror, since Hamdan had ties to the al-Qaeda orginazation, and had not operated as part of an enemy government.

The Supreme Court granted Hamdan’s writ of certiorari, and first saw the case in March of 2006. Their hotly-debated reversal of the Court of Appeals’ opinion stemmed partially from them finding the military commissions Bush appointed under Military Order of November 13, 2001, illegal in violation of the law of war under both Geneva and the UCMJ. On the subject of the jurisdiction of the judicial system raised by the Court of Appeals, they ruled that Geneva guaranteed protections to individuals in the control of the Geneva nation, and that Geneva made provisions for combatants to be tried in court. The Court specifically did not rule on whether or not Bush had the power to appoint such commissions to try terror suspects in the first place, or if they were compatible with the law of war.

The Supreme Court opinion was heavily dissented, with Justices Samuel Alito and Clarence Thomas joining Justice Antonin Scalia’s written dissent. The dissent cites the Detainee Treatment Act of 2005 as proof that the Supreme Court cannot claim jurisdiction over the Hamdan case. The act states, in part, “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” The dissent also claimed that the defendants held outside the US territory lack the right to issue writs of habeas corups, or to ask US courts to claim jurisdiction. It notes that the judicial system could be swamped by petitions from foreign prisoners if they claim jurisdiction.

After the Supreme Court ruling, Hamdan could be tried for terrorism, but only in a proper court setting. The reaction of the presidency, however, may change Hamdan’s new protection. The Military Commissions Act of 2006, signed into law in October, immediately following the conclusion of the Hamdan case, specifically revokes many of the rights ruled upon, as well as establishing military commissions as a full and qualified court for future legal proceedings. Enemy combatants tried under the Military Commissions Act lose their right to invoke Geneva privileges and their UCMJ rights to speedy trial. The right against self-incrimination is only foggily spelled out in the act. Statements obtained through torture before December 30th, 2005, are still admissible of the judge deems it of significant value. In fact, the judges on the commission are given a lot of discretion as to what evidence is and isn’t admissible, especially when involving hearsay and un-sworn testimony.

Amnesty International released a statement shortly after the act was sworn in, condemning the new law and claiming US protection against torture and inhumane treatment was inadequate when “US officials have continued to characterize the USA as a ‘nation of laws’.” They also noted that even after a commission has cleared a terror suspect, he can still be held indefinitely in military prison.

The right given to combatants in the war on terror as examined in the Hamdan case have stirred up a lot of controversy. On one side are the governmental hardliners and staunch backers of the US war against terrorism. This side argues that the measures taken at Guantanamo Bay and elsewhere are the only way to win the fight for homeland security. The pragmatic approach states that the military commissions are the only way to hold terrorists without giving away too much of US intelligence-gathering capabilities. In the atmosphere of the Middle East, typical UCMJ law cannot be applied if the US military is to prosecute terrorists and obtain information to prevent more terrorist attacks in a timely fashion. The safety of US citizens outweighs the rights of foreign combatants, not connected to any government, to protections under international law.

The other side of the argument comes primarily from the liberal left and civil rights supporters, who condemn the treatment of prisoners held at military camps, both in terms of the torture and physical mistreatment reported on from time to time, and more specifically, to the rights withheld from them concerning fair trial. This group often argues that the Bush administration is using the war on terror to curtail individual rights, and worries about a slippery slope leading from Hamdan’s trial by commission to US citizens being held without charge on evidence not made available to them.

Neal Katyal from State.com has weighed in on the Hamdan case in two separate articles, both pushing for the court-martial system to be used to try terror suspects at Guantanamo Bay. The first, “Sins of Commission,” was published when the case first came to the District Court in 2004, right before the presidential elections. He praised Senator and former presidential candidate John Kerry for saying that he would replace the system of military commissions in favor of a legal system based on court-martial, while decrying Bush’s Military Order Act of November 13, 2001, saying the commissions were unnecessary and severed only to subvert Constitutional and international protections.

His second article, delivered in the wake of the Supreme Court’s Hamdan decision, again, asks for the use of court-martials to try terror suspects, now that the Court “struck down President Bush’s fake trial system at Guantanamo.” He criticizes the administration’s speed in creating the commission system, saying that the system was unnecessary, given the court-martial system, as a means for trying suspects and terrorists, and that the commission system, quickly signed into law, unnecessarily deprives suspects of rights already referred to in existing law, including the UCMJ and the Geneva Conventions. He urges the use of existing legal systems to prosecute suspects, saying that they have already been proven to be fair. Nothing is fair, Katyal claims, about the commissions.

Katyal would find confirmation of his opinions among his colleagues at the Washington Post. Their editorial board released the article, “A Case for Appeal,” in September, 2006, which was a plea against what would become the aforementioned Military Commissions Act sponsoring the military commissions and the use of extreme tactics on terror suspects in light of the Supreme Court’s ruling on Hamdan v Rumsfeld. The Post article urges judicial oversight in the military proceedings at Guantanamo Bay, and condemns the Republican-sponsored act as allowing forms of torture to be used. The editorial board claimed that with the act eliminating judicial oversight from military proceedings, the vague language will allow military officials to act with impunity in interrogation, using whatever extreme interpretation of the act they feel is necessary. “If Congress passes responsible and lawful policies,” the article states, “judicial review poses no threat, but serves to validate their lawfulness.”

In the December 2006 issue of Jurist, the University of Pittsburgh’s legal newspaper, Kathleen Duignan, Executive Director of the National Institute of Military Justice, writes a guest column about the reactionary Military Commissions Act from the view point of a military Judge Advocate General. The JAGs, who now have to carry out the commissions, are forced to try suspects in a system that they would never condone for their fellows servicemen and women.

Duignan, like other columnist before her, questions the wisdom of creating and entirely new commission system originally for the trials of just 14 prisoners, a number that has since expanded to only 80 combatants. She likens the terror suspects to domestic terrorists such as Timothy McVeigh, who bombed an Oklahoma City building in 1995, and was sentenced to death in federal court, and wonders why the alleged Guantanamo bay terrorists shouldn’t be tried in the same way. She says that her National Institute of Military Justice provided recommendations to Congress that involved starting with the present court-martial system, and making changes from there.

She, too, dislikes the lack of judicial oversight, noting that abuses in the system cannot be addressed until cases have been closed, meaning a wrongfully-accused prisoner could be in military prison for a decade before being allowed to see a federal judge. From the point of view of the military, she sympathizes with the JAGs who will be expected to make this “half-baked system” work, and with the US soldiers who may not be able to expect Geneva protections after the US government shows its disregard for the treaty.

President Bush, upon signing the Military Commissions Act into law on October 17th, gave a brief speech reaffirming the merits of the act in fighting the war on terror. He called it one of the “most important pieces of legislation” in the war, allowing the CIA to continue questioning terrorists leaders like Khalid Sheikh Muhammad, who he called the “mastermind” of the September 11th attacks. He mentions that defendants will have full access to all evidence used against them, which is not true under the act. Not once in the speech does he got into the specifics of the commissions the act empowers him to create, nor why they are necessary when the court-martial system exists for trying prisoners of war.

Senator John McCain had a slightly stronger defense of the bill when he argued for its passing in the senate: “My three primary goals for legislation authorizing military tribunals were: (1) Adjudicating the cases of detained terrorists in proceedings that are consistent with our values of justice, (2) Protecting classified information, and (3) Ensuring that our military and intelligence officers have clear standards for what is, and what is not, permissible during detention and interrogation operations.” His remarks on the Senate floor made it clear that he saw the act as the best way to accomplish these goals. He delivered an impassioned diatribe on the importance of the CIA and military intelligence’s use of interrogation to discover information pertaining to national security, saying that to keep the nation safe, “timely and actionable intelligence,” was necessary. He said that the nation could, “ill-afford to lose any of these intelligence collection tools if we are to succeed.”

Although many Democrats voted for the bill, which passed the Senate 65-34, some had negative things to say about the spirit of the act, which made legal the commissions already struck down as unfair by the Supreme Court. Senator Carl Levin felt the passing of the act was to,” legitimize the mistreatment of detainees and to undermine some of the cornerstone principles of our legal system.”

Others viewed it as a question of morality, of the US abandoning the principles of fairness and justice that guided the writing of the Constitution. House Minority Whip Steny Hoyer viewed the bill as a reflection of who Americans were as a people. “Defending America requires us to marshal the full range of our power – diplomatic and military, economic and moral,” he said in a release from the Office of the Democratic Whip on the Military Commissions Act. “And when our moral standing is eroded, our international credibility is diminished, as well.” While he and the Democratic Representatives stood behind the war on terror, he wants to make sure that the nation upholds its high standards of morality at the same time.

Praise for the new act is hard to find, once McCain left the Senate floor. Unfortunately, the Military Commissions Act stands as law, the result of the Bush administration’s butting heads with the principles behind the Geneva Convention and the UCMJ, as well as the principles of fairness espoused in American courtrooms. It is the end of a two-year legal battle that settles, for now, the legality of the prisoners being held without proper trial at Guantanamo Bay.
While it seems contrary to American beliefs about justice, fairness, and the presumption of innocence, it seems that the Bush administration is beyond reproach when it comes to deciding what measures can be used against prisoners in the war on terror. Drafting new law to reverse the Supreme Court’s admonishment shows that the administration cannot be curtailed in what it believes is necessary. The only hope for saving the moral character of this nation comes once the Republican Administration is out of office.