Gitmo: significant victory for human rights
With all the continuing, terrible news about Iraq it was good to hear of one small but significant achievement for the global human rights movement.
Namely, Monday's decision by Judge James Robertson of the US Federal Court in Washington DC, in the case of long-time Gitmo detainee Salim Ahmed Hamdan, inwhich he judged that:
- * The Geneva Conventions applied to the conflict in Afghanistan and to all people in the conflict;
* The combatant status review tribunal (established by the Pentagon after the Supreme Court’s ruling against the administration last summer) is not a competent tribunal for determining Hamdan’s prisoner-of-war (POW) status under the Geneva Conventions;
* Unless and until a competent tribunal determines that Hamdan is not a POW, he is entitled to be tried under the same justice system that U.S. soldiers are afforded;
* Even if Hamdan is not a POW he may not be tried before any military commission until the rules are amended so as to be consistent with the Uniform Code of Military Justice (UCMJ) – the federal laws governing trials for U.S. soldiers; and
* Hamdan must not be held indefinitely in solitary confinement and should be returned to the rest of the detainee population.
The Bushies' had argued that "terrorism" was something so new, so tricky, and so heinous that the "old-fashioned" rules of the Geneva Conventions couldn't possibly be said to apply to people accused of having committed it.
"Not so fast," said Judge Robertson (in effect).
I don't have Robertson's decision in front of me. What I do have is a great piece of reporting by Avi Cover of Human Rights First, who has been down in Gitmo "covering" the resumption of the "Combatant Status Review Tribunals" set up there by the administration as a way of skirting its responsibilities under the Geneva Conventions...
One point Cover focused on from Robertson's ruling was this succinct statement: "The President is not a tribunal."
In other words, just the fact that the Prez determined that Hamdan and all the other number of illegally held detainees did not have any right to Geneva Convention protections did not make it so.
Amen to that, I say.
Anyway, Cover's reporting is really quite exciting. He and a few other NGO reps were down there observing the Gitmo Status Review Tribunals on Monday, actually listening to the Presiding Officer there go into some arcane point of law. When suddenly, this happened:
- Presiding Officer Brownback reviewed a series of developments since August when the case had last been before the commission...
Then Lt. Cmdr. Swift [Hamdan's appointed military attorney in that proceeding]got up to argue that the commission as presently constituted with only three panel members and no alternates was in violation of the military commission order... Swift asked that the commission certify the issue for the Appointing Authority to decide.
It was in the next moment that the proceedings – which were just beginning to seem routine – became anything but. A soldier handed Presiding Officer Brownback a note. After reading it Brownback then stated blandly: “We are going to take an indefinite recess.” The three members exited the room quickly while everyone else was left looking quizzically at one another wondering, “What’s going on?” Then the word rippled through the room, “the federal court stopped the commissions... the federal court stopped the commissions!”
Ironically, the lawyers, we NGO representatives, and the press stuck here in Guantanamo – all under the constraints of security with limited access to any computer – felt as though we were the last to read the federal court’s actual decision. Although Hamdan’s case had been before the military commission, Hamdan’s lawyers had also challenged his detention in a separate case in federal court and attacked the commission’s legality from outside. After the commissions recessed, we were driven to the press building (about 5 minutes drive from the courtroom) and after a time given Judge James Robertson’s 45-page decision. Judge Robertson’s order and decision granted Hamdan’s request in part, most significantly stopping the military commissions.
- What Hamdan’s lawyers and organizations like Human Rights First have been arguing for a long time is that the Geneva Conventions do apply to the conflict in Afghanistan because Afghanistan had been a party to the treaty. .. The decision makes clear that the Geneva Conventions do in fact apply to those hostilities in Afghanistan in at least late 2001.
In addition, Judge Robertson’s decision is also a clear statement that the Combatant Status Review Tribunals (CSRTs) do not reach the level of a competent tribunal as envisioned by Article 5 of the Geneva Conventions and the military’s own regulations...
As Judge Robertson states succinctly: “The President is not a tribunal.” In other words, it’s not for the President to determine as a general matter than neither Hamdan nor any vast category of detainees can be deprived of Geneva Convention protections; that determination can only be made on a case-by-case basis, by a tribunal set up to hear the facts, and apply the law. Indeed, military regulations are structured so as to implement Article 5 of the Geneva Conventions, setting forth clear procedures for determining the status of a detainee. The CSRTs, in contrast, ask only whether a detainee is an enemy combatant or not (a term with no clear meaning under the Geneva Conventions) – and they come only now, thousands of miles and years removed from the facts of capture on the ground.
The court further made clear that even if Hamdan is found not to be a POW, he still cannot be tried before the military commission as presently constituted. Judge Robertson found that the military commissions were fatally flawed because they were “contrary to or inconsistent” with the procedures in the UCMJ. In particular, the military commission allowed for great amounts of evidence to be kept from Hamdan and all other defendants, under the vague and broad term “protected information.” The UCMJ does provide for the creation of military commissions, but not commissions, like those underway at Guantanamo, that so deviate from the basic fairness rules of the UCMJ.
Finally – and perhaps most important – Judge Robertson recognized the importance of ensuring that Hamdan be removed from Camp Echo (where he had been held in psychologically debilitating solitary confinement for almost one year) and returned to the area of Camp Delta where other detainees are held.
Lt. Cmdr. Swift told us that he had given the good news to Mr. Hamdan and that he was very excited about the prospect of getting a fair trial. Neither Swift nor [his civilian colleague] Neal Katyal would say what he thought this decision meant for the some 550 other detainees held at Guantanamo and the few awaiting trial. But I expect it to have significant effects, precipitating similar petitions by all of those detained here. Of course the government has already stated it will appeal the decision and seek a stay, advancing the same arguments it has made about commander-in-chief powers since it began designating individuals “enemy combatants” in 2002.
But at least, Judge Robertson's court has now told us that in its view, Guantanamo is not a place free of the protections afforded by the US Constitution and the Geneva Conventions.
Here's how Cover wound up his piece:
- Today was a stunning day – one in which the rule of law really did prevail and a judge’s reading of international law protections and the Uniform Code of Military Justice in Washington, D.C., helped put at least a temporary halt on this extraordinary process – the military commissions, over hundreds of miles away in Cuba. The decision is just one of many in which the courts have held that the President cannot act beyond his constitutional powers and ignore the roles of Congress and the Court. For the time being, things are shutting down here at Guantanamo, and now I just have to see if I can get flight out of here.
Well, that's nice ... but I suppose it will lead to a much higher rate of 'disappearances', 'ghost detainees', and 'renderings' - all devices to move US prisoners beyond scrutiny or protection.
I have been thinking about the communal politics of Iraq again, though this is not the thread for it I know : suppose that, to counter the idea of a Shi'a anti-US regional axis developing, based in Iran and extending to Southern Iraq, Syria and Lebanon, Eastern Saudi Arabia, Yemen, etc., the aim of the USA is to create in Iraq a secular pro-West Shi'a ascendancy which will then spread to all the above-mentioned places and use the numerical preponderance of Shi'a ('democracy') against the possibility of anti-Western Shi'a militancy ('theocracy')? This would explain why first Chalabi then Allawi had to accept the role of figurehead, and why Sistani is simultaneously anti-US and pro-elections. It's a naive project : if the Shi'a followed it they would end up in the role of a manipulated minority dependent on US protection (vis-a-vis the Sunni world as a whole), even while actually not being a minority at all (in the narrower sub-region centering on Iran).
I thought the previous supreme court ruling was a 'victory' This administration has never followed an opinion they disagree with, they won't start now. Look who Bush just appointed attorney general. The new attorney general is the guy who 'wrote the book' on detainee treatment for this administration.
Helena, did you read this column in the LA Times today? http://www.latimes.com/news/opinion/commentary/la-oe-weiner10nov10,1,1222506.story?coll=la-news-comment-opinions
do you believe this is even possible? In my opinion it is the answer to the Palestinian/Isreali situation. Particularly the part about walking up to settlements.
Do you believe, at this point, the Palestinians are culturally able to even take a step like this?
Sorry, this is another thread, but has anyone heard any reaction from the Shi'it leadership concerning Falluja? This is the defining moment for civil war.
Peter, why would the attack on Falluja be the defining moment for civil war? Do you mean civil war between Sunnis and Shi`is? If so, what about the Americans attacking Falluja would make it the defining moment for such a conflict?
Shirin, maybe Peter is following my train of thought : the pressure from below must be on Sistani to follow the example of the Iraqi Islamic Party (a Sunni party which withdrew on the 9th from the Allawi government, where it had a cabinet post, over Fallujah). What I tried to explain about the naivety of the Shi'a, who are a majority in the sub-region, becoming dependent on US support, as if they were a mere minority, must be widely understood, though I don't know how to explain it clearly.
Helena, any chance you can get in to this?
It'd be a real scoop to discuss Alberto Gonzalez or get a few minutes with Sy Hersh privately.
If I were in DC/VA, I'd use whatever strings I had to try for a private chat with Hersh....
Rowan, I am sorry, but I still don't see how the American destruction of Falluja can be seen as the "defining moment" for a civil war, presumably between Sunni and Shi`i.
Well, I agree with you there, Shirin, the idea of a 'defining moment' is bit simplistic. It's only in retrospect that historians will say, "at point [x], actor [y] was forced to choose between alternatives [p] and [q]" - and then other historians will pop up and say " no, you're quite wrong it was at point [n]."
The expression 'civil war' is also a bit misleading because it assumes a unitary nation-state within which matters are 'civil' as opposed to a set of external relations within which they aren't. All borders created by colonial powers are products of divide-and-rule thinking and should not be taken as any sort of expression of genuine nation-state separations.
The Ottoman borders were not based on this sort of thinking, though it is true that the Ottoman provincial rulers sometimes acted autarchically.
Persia, of course, was never part of the Ottoman system, although it was briefly occupied by Ottoman forces in the 17th and 18th centuries.
Rowan,
Please forgive me, but while what you said is interesting, it appears to me that you have not addressed my question.
Let me rephrase the question in simpler terms. What has the American destruction of Falluja to do with civil war between Sunni and Shi`i?
It was another poster, a certain Peter Hoffman, who used the term 'civil war'. The argument I have been trying to develop doesn't use this term and as I have explained it is a loaded one. I am simply interested in the dynamics of the Shi'a world, irrespective of borders wherever they may be, since I see it as what I call a 'strategic variable' - something that the US seems to be trying to manipulate, or to some extent to take for granted, possibly not wisely.
p.s. - just to clarify all this : consider the situation of the Kurds. Within what they themselves define as 'Kurdistan' they are, naturally, the majority ; however, within each of the four post-Ottoman states within which 'Kurdistan' is currently subsumed (Turkey, Iran, Iraq, and Syria), they are minorities. This makes them easy to manipulate externally and is the basic paradigm for what I normally refer to as 'divide-and-rule'. The delineation of the borders which makes this tactic possible is exactly analogous to the 'gerrimandering' of constituency boundaries in what are blindly called 'democracies'.
Now the Shi'a world is divided in exactly the same way but on a larger scale, except for the fact that there remains at its centre one unreconstructed Shi'a state, namely Iran. Apart from this, Shi'i (thanks for the plural) are minorities everywhere from Pakistan to Lebanon, and from Yemen to Syria.
The Qutbist strategy as outlined in the Zarqawi letter (it matters not whether this was real or bogus, since the whole Qutbist project is in my view a conscious or unconscious Western pawn), is to combine the anti-Western radical Sunni uprising with an assault on Shi'i. To the extent that Badrists and SCIRI supporters in Iraq allow themselves to be used as occupation cat's-paws, they play into this strategy, and as I have pointed out the Qutbists have been announcing a number of killings of Badrist 'collaborators' in their communiques. This I regard as a terrible weakness in the whole Iraqi anti-occupation struggle, and Muqtada al-Sadr has certainly appealed repeatedly to both sides to reconsider this set of alignments.
Rowan, I thought you were answering my questions regarding the civil war assertion.
Well, I am trying to in a way, but I can't answer for Peter Hoffman, and we shall have to wait for him to check back in and do so himself.
Denizens of the US (I don't like to say 'Americans' since this is one of those words like 'Semites' that is a product of hegemonic pre-emption) are accustomed to using the expression 'civil war' as if it were an exact and morally neutral description of something, but it can never be. As a matter of fact this sort of language construction has been fairly well analysed by Marxists, at least up to a point. Their argument is that because the 'bourgeois state' uses the rhetoric of pluralism (even though the only plurality of interests it really recognises is that of the cliques of capitalist interests), it pretends to stand above regional and confessional factions, but this is really just a cowardly representation that ordinary citizens use to hide from their own fears with. A good exercise to overcome this is to never use the term 'we'.
By the way, I notice that Free Arab Voice etc. have stopped doing what I was complaining about, which is congratulating themselves on the number of Badrist 'collaborators' they have just killed. Maybe they are reading this site!
Don't you think there is an artificial polarisation between the o-so-radical Sunni 'intransigents' and the o-so-complaisant Shi'a 'collaborationists'? Is it really possible to ignore the tit-for-tat mosque bombings in Pakistan? Would it surprise you if they started occurring in Iraq and elsewhere? And yet, who would gain? Only the US and its satraps - no one else - certainly not either of the parties concerned...
I found Helena's previous posts about Hizbollah:
http://justworldnews.org/archives/000129.html
http://justworldnews.org/archives/000130.html
-- the first is disfigured by a chunk of spam in the comments section (there are a lot of these across your site, Helena) and the second by a fatuous paragraph about how women are not to be seen in football crowds. However, the basic analysis is quite bold.
Rowan, I am sorry, but I find your responses incoherent in terms of my question regarding the attack of Falluja as the "defining moment" for civil war between Sunnis and Shi`as. Perhaps it is simply that we are on totally different wavelengths.
I do wonder whether you are aware of the virulent and exrremely crude and ugly anti-Shi`a sentiments on the part of some of the extreme Sunni elements, such as the Zarqawi gang. They express these freely, have always done so, and need no encouragement from the U.S. in this regard.
Shirin, you seem to be trying to create a quarrel out of thin air. Get a life.
re the tribunals versus judges business, there's a great example of Ashcroftiensis Rampans today:
http://www.washingtonpost.com/wp-dyn/articles/A46434-2004Nov12.html
"Sistani has been criticized recently for not speaking out against US attacks on Sunnis in the way he had with regard to Najaf, a Shiite center. Sistani likes to present himself as concerned for the welfare of all Iraqis, not just of his Shiite followers. But he is only called for peace in Fallujah when the fighting is already largely over with. That move will look cynical to a lot of Sunni Arabs." (Juan Cole, today).
--the word I used was 'disingenuous', but it means the same. Now get off my case, Shirin - I have enough of a problem not yelling at the trolls.
Rowan, I simply cannot find a way to connect your remarks to my questions. I have been attempting to have a conversation with you in an effort to understand the connection. I have felt no animosity toward you, and have remained entirely civil and courteous toward you. I am sorry that you cannot do the same toward me.
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