I know I’m late in commenting on the US Supreme Court’s decision,
announced June 19, that ruled
illegal the Bushites’ project of establishing special “military
commissions” to ptorcess the cases of the 500-some men still held at
the Guantanamo Naval Base.
The decision is important at a number of levels. Firstly,
regarding the fate of the Gitmo detainees, the Supremes told the
administration it has to either try them according to the existing
rules and procedures used by courts martial (which operate under the
Uniform Code of Military Justice)– or, it should go to Congress and
ask Congress to legislate new rules for dealing with these detainees.
(I’m assuming this also applies to detainees held by the US military or
“other government agencies” at Bagram Airforce Base in Afghanistan, or
elsewhere, as well? I’m not sure, though.)
Secondly, the June 29 decision informs the President quite clearly that
even though 9/11 might have changed many things for Americans– a
proposition worthy of considerable further discussion– still, it did
nothing to alter the concept of the US as a political system that
operates under duly legislated laws rather than through
imperial fiat or the undisclosed and unregulated workings of secret
government agencies. This will have huge effects, I hope, on the
Bushites’ ability to continue with other illegal projects like the
widespread use of warrantless wiretapping of everyone’s communications
and illegal scrutinization of people’s financial dealings…
Good for the Supremes! (Or at least, for the five of them who
voted for this ruling, as opposed to the three who opposed it.)
Regarding the fate of the Gitmo detainees– many of whom have now
languished under the sometimes brutal and always demeaning control of
their captors for more than four years now– the administration (and
Congress) will find themselves dealing with some rather tough dilemmas:
- Even though the military justive code offers the accused fewer
due-process protections than the civilian code, still, it gives no
allowance for the abuse or torture of those held under it. The
Gitmo authorities will therefore find themselves able to organize
lawfully constituted courts martial for only those detainees whom the
authorities have reason to believe have not been abused or
mistreated. The number of such detainees may be very low,
trending toward zero. - From the point of view of the administration, the greatest
“danger” in releasing Gitmo detainees is not that they will immediately
rush off to join, or rejoin, Al-Qaeda in an active way (though given
the way they’ve been treated while in US captivity it would not be
surprising if some of them felt motivated to do that) but rather that once out of captivity, they become
able to share with the outside world two important aspects of their
stories: not just the way they’ve been treated by their captors, but
also the sometimes trivial or non-existent nature of the work they had
previously done for Al-Qaeda or the Taliban. This has
already happened with some of those released. But so far, we’ve
been assured that those already released were those at the “less
dangerous” end of the spectrum, with the implication that many of those
not yet released are much more “hardened” characters. However, we
have no particular reason to believe this is the case. If all
those still detained get their day in the important court of global as well as US
public opinion, we may see that very, very few of them indeed
were important Qaeda or Taliban operatives, and therefore that the
entire hue-and-cry the administration has raised about why they had to
be subjected to such terrible mistreatment for all this timewas nothing
but an elaborate and extremely damaging smokescreen. - Of course, if the detainees get their day in a court martial or
some new form of tribunal specially established by the legislature, all
these kinds of facts would almost certainly similarly become more
widely known.
If Congress does get involved in working with the Bushites to craft new
legislation, it will have to engage directly with the above
dilemmas. (Which raises in my mind the question about why the
members of Congress– and especially the Democrats amongst them– would
feel any motivation to help the administration get out of the juridical
mess it has gotten itself into, at all?)
I see that our rather sensible and very senior senior Senator from
Virginia, John Warner– a Republican– has already expressed some
concern along broadly similar lines.
This
piece by Kate Zernike n today’s NYT says:
of Virginia, the chairman of the Armed Services Committee, said he had
not yet decided what course Congress should take. But Mr. Warner, who
will preside over hearings on the issue in July, said he was concerned
that new tribunals, even if authorized by Congress, might not withstand
judicial scrutiny.
“We’re going to do this extremely
carefully and accurately, or we’re
going to end up with a solution that once again ends up being the
subject of litigation, and possibly being overturned,” Mr. Warner said
in an interview in his office.
The scope of the court’s decision stunned
the White House and
Congress, forcing the House and Senate to rearrange their limited
summer legislative calendar to address the issue. Lawmakers from both
parties said Friday that they hoped to reach agreement by the end of
summer on a new plan to bring terror suspects to trial.
Zernike notes that there are divisions inside both the parties in
Congress over how to proceed. However, Warner and the Senior Dem
on the Senate Armed Services Committee, Sen. Carl Levin of Michigan,
had some ideas in common:
Mr. Warner and Mr. Levin said they wanted
to broaden the discussion
of how to treat detainees beyond the tight circle the White House had
relied on, in particular to include the military. The hearings, Mr.
Warner said, will rely on sitting and retired judge advocates general
from each military branch. In the past, he said, those military lawyers
“didn’t get a full voice.”
A senior Senate Republican aide, granted
anonymity to speak freely
about the internal debates, said, “It’s clear that the administration
was eager to push the envelope as far as it could by setting up these
tribunals without legislative authority. They got a brushback from the
Supreme Court, and now the Senate is struggling with whether or not to
side with the administration’s original approach or something else.”
However, there are plenty of uber-faithful GOP loyalists eager to
try to make this a party-political issue in the lead-up to November’s
election. Zernike writes:
Members of both parties said they wanted
to work with the president,
and hoped that the gravity of the issue would trump politics. But the
hearings come at a difficult political moment, with Democrats hoping to
take back the majority in both houses of Congress in November.
The Democrats could try to make the
hearings a referendum on what Senator Edward M. Kennedy
characterized as the administration’s “lawless” treatment of detainees.
But Republicans were already seizing the opportunity to paint Democrats
as weak on terror.
A news release from the office of the
House majority leader, Representative John A. Boehner,
Republican of Ohio, seized on comments by the minority leader,
Representative Nancy Pelosi,
Democrat of California, saying that the Supreme Court decision
“reaffirms the American ideal that all are entitled the basic
guarantees of our justice system.” The headline read, “Capitol Hill
Democrats Advocate Special Privileges for Terrorists.”
Carl Levin, however, noted that,
tribunals if they looked
like what the president initially wanted because the courts ruled that
they violated provisions in the Geneva Conventions and the military
code of justice.
“There are certain guideposts that put
limits on this,” he said.
“Unless we amend prior statutes, which I don’t think we’re inclined to
do, we’re governed by the law of war.”
That is, in this case, by the Geneva Conventions relevant to the
treatment of anyone–whether combatants or noncombatants– captured
during military operations.(Of course, if the detainees are deemed to
be POWs, they can’t be tried at all, and must be kept in extremely
humane condit9ions until ythe end of the conflict in question.)
Zernike wrote:
courts unpalatable because of
the due process they afford. [!] Officials there said Friday that they
were
generally against leaving the combatants to the military justice
system, not only for its degree of due process but also for strict
standards of evidence to which prosecutors are required to adhere.
Exactly! The Bushites would have to actually reveal the evidence they have
against these men! And then we might all see how extremely
thin it is!
… This issue of a government locking up and mistreating/torturing
large numbers of people without using any of the due-process
protections (which protect government officials against their own
stupdity and excess of zeal almost as much as they protect detainees
held by the government… ) and then feeling unable to release these
detainees because to do so would reveal their own stupidity and
excesses, is not a new one. It has happened in the case of many
colonialist governments seeking– ultimately, unsuccessfully– to quell
nationalist insurgencies, as well as by various other forms of
authoritanrian governments (Stalin, etc.) Which tells us all, I
think, a lot about the true nature of the Bushist project.
Thanks, Helena. Such bloodthirstiness and contempt of the law depress me. Why aren’t my countrymen evolved enough to see that this sort of behavior will only blow back on all of us in due time?
Guess they didn’t watch enough original Star Trek episodes. A basic moral compass is broken in America. Ugh.
You are right that the administration is trapped worrying about what many of these detainees will have to say when they are released. There may be valid concerns about a few detainees who served as active militants in al-Qaeda, but it is unlikely that a majority of these hundreds of men at Gitmo (like Hamdan) present a real threat to American lives. Rather they and their stories of torture pose a threat to the stature and reputation of the Bush administration.
I am aware that Hamdan’s American lawyers traveled to his hometown where they interviewed Hamdan’s family and friends. What they found is that Hamdan is a simple-minded, illiterate man who worked as a “go-pher” within al-Qaeda, in order to send small sums of money back to his wife and kids in Yemen. Hamdan’s parents and friends all know him as a stumbling, bumbling “fool,” not the kind of person al-Qaeda’s leadership would entrust with serious mission responsibilities. The fact that Hamdan was swept up in post-9/11 arrests in Afghanistan is equivalent to the recent arrests in Miami where a bunch of Haitian Santamarian-believing “Muslims” supposedly posed a Code-Red threat to the Sears building in Chicago.
You are also right to draw the connection between American policies in the “war on terror” and other colonialist attempts to put down nationalist insurgencies. The former British imperial attempt to put down the American revolution had some of the same characteristics. This is in fact noted in the founding American “Declaration of Independence.”
Last fall I was fortunate to attend a dinner that included the lawyers who argued the defense case for Hamdan before the US Supreme Court. Two men in particular: a fearless lawyer appointed by the Navy to represent the Gitmo detainees, along with a soft-spoken professor of law at Georgetown University. At the time of this dinner the lawyers had to keep details of their defense unspoken. But they did offer some insight into the nature of the defense they would offer Hamdan.
They referred to the fact that the US Constitution and military code of justice were established to ensure that American government officials and military servicemen behave according to the rule of law. The Navy lawyer spoke eloquently about the fact that the founders of American democracy suffered arbitrary arrest, detention without legal defense, and transportation across seas at the hands of British imperial forces.
The exact quote from the American “Declaration of Independence,” midway through a long list of grievances against King George, is the following:
“He has combined with others to subject us to a jurisdiction foreign to our constitution…
“For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States…
“For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offenses.”
I have no idea if the lawyers did indeed draw this parallel when making their arguments before the judges on the Supreme Court, but if they didn’t then it at least weighed heavily on their minds as they sought to persuade the Supremes. My guess is that the Navy lawyer did include this historical parallel in his arguments, and it is perhaps one of the factors that swayed the majority opinion of the Court behind the remaining liberals, Stevens and Ginsberg. Most Americans would no doubt be offended by any comparison between 1776 revolutionaries and al-Qaeda sympathizers in Afghanistan in 2001, but more Americans need to wake up to the shameful way our current administration has been acting like an imperial force in world affairs.
“The true nature of the Bushite project” indeed. With the Hamdan ruling, King George has finally been knocked down a notch. It is perhaps the first victory for the rule of law since 9/11. Let’s hope that Senators like Warner and Levin will not cave into White House demands when Bush and Cheney come looking for a way to recreate unjust military tribunals. And equally important let’s hope one day soon American officials and citizens will wake up to the shameful way that Israel has for decades behaved as an imperial and illegal force over Palestinian Arabs in East Jerusalem, Gaza, and the West Bank.