Yesterday, President Bush signed the Military Commissions Act of 2006. It was a defining moment, marking the first time that a duly enacted statute in this country has stripped the essential, age-old provisions of habeas corpus away from a whole class of people held prisoner by the US government.
Habeas protections have been suspended here twice before. But on both those occasions, the suspension was done only by executive order– by President Lincoln during the Civil War of the 19th century and by President Franklin D. Roosevelt during World War 2; and on both those previous occasions, the suspension was lifted with the end of hostilities. By contrast, the present stripping of habeas from a whole class of persons has been written into US law and has no predictable termination point. Some critics have claimed that this makes the new Military Commissions something like the infamous Star Chamber of Britain during the 15th-17th centuries. However, at least the Star Chamber coexisted with habeas, which had been enshrined in British common law since the 13th century, or perhaps earlier.
So maybe the new Military Commissions are even worse than the Star Chamber?
The persons from whom the MCA has stripped habeas protection are those determined by a body formed by the US military that is called a “Combatant Status Review Tribunal” to fall into a category called “unlawful enemy combatants”. The CSRT process had been devised as a way for the US military to claim that it minimally met the requirements of Article 5 of the 3rd Geneva Convention, the convention concerning treatment of prisoners of wa. (Protections for POWs are significantly different from– and superior to– those afforded to common criminals.) Article 5 states that if any doubt should arise as to whether a detained person is a POW or not, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
In July 2004, after the Supreme Court ruled that British citizen Shafiq Rasul and a number of other men held prisoner in Guantanamo did indeed have the right to an Article 5 hearing, the administration established the CSRTs for the Guantanamo prisoners. The nearly 700 prisoners then held at Gitmo then had hearings before these (notably unfair) bodies, which judged that the vast majority of them were not POWs but were “unlawful enemy combatants”. (I’ve relied for a lot of the info in this post on Joseph Margulies’s excellent book Guantanamo and the Abuse of Presidential Power. It is a great guide through the Kafka-esque maze of regulations that have affected the Gitmo detainees.)
Note that the Gitmo detainees have all along been consigned to a limbo-like universe that “falls between the cracks” of normal and predictable legal regimes. They were brought to Gitmo– most of them between December 2001 and fall 2004, though 14 of them just this past September– precisely because the Bush administration judged that the Guantanamo Naval Base was neither US sovereign territory nor territory that was under US military occupation as per international law. If the former were true, then the detainees would have all the protections that US law affords– as happened, for example, to Ramzi Yousef, who was snatched by the Clinton administration from, I believe, someplace in Pakistan, and brought to New York where he was put on trial. And if the latter were true, then the US military could only capture and hold prisoners in line with the strictures of Geneva Conventions numbers 3 and 4. And indeed, regarding all US military operations inside Iraq, the administration does say it considers itself subject to these Geneva Conventions. Hence the anomaly that Saddam Hussein has been treated considerably better in every way, including in his access to legal counsel and other legal protections, than the 700 or so people who have spent many years at Guantanamo and have never had any credible evidence brought against them.
However, in its judgment on Rasul, the Supreme Court said that at least the detainees deserved a “POW status review” hearing, as per Article 5. And at that point, the administration created (or resurrected) this “unlawful enemy combatant” designation which put the detainees into the Kafka-esque situation that they were neither POWs, and subject to protections as such, nor civilians, and subject to that set of protections.
More legal limbo.
POWs have to be lodged in decent conditions in a group setting; they are not required to submit to any interrogations or to provide any information beyond “name, rank, and serial number”; and they are all assured release and repatriation to their home country at the end of the war– except for those among them regarding whom the detaining authority has specific information that they have committed war crimes, in which case those individuals can be tried. Civilian prisoners, on the other hand, get access “with due speed” to the normal US courts and the protections afforded therein.
The CSRTs’ designation of most Gitmo detainees as “unlawful enemy combatants” denied the detainees both these avenues for potential relief. And given that many Bush administration spokesmen have talked a lot about the “generation-long” extent of the “Global War on Terror”, the detainees have faced the prospect that they might remain in their present legal limbo– and subject, I should add, to conditions of life that are often extremely appalling, including prolonged isolation, very tight controls, very intrusive and unpredictable “interrogations”, etc etc– for the rest of their lives.
This, while the vast majority of the detainees have never been credibly charged (let alone convicted) in any public forum with any specific crime. Indeed, ever since the administration first tried, back in 2002, to set up “Military Commissions” (i.e., military courts) inside Guantanamo to try prisoners there, it has only ever brought any specific charges of wrongdoing against ten of the hundreds of people detained there. Meanwhile, over the years since 2004, it has quietly released around 300 of the men whom it once held there, giving the lie to the hype voiced by Donald Rumsfeld and others at the time the Guantanamo camp was opened, that the people transported there were all “the worst of the worst.”
Shafiq Rasul and many others of those released over the past couple of years have credibly claimed they were unconnected to any violent activities or organizations when they were in Afghanistan or neighboring areas of Pakistan in late 2001, and that they had been captured there by bounty hunters eager to cash in on the $5,000 bounties offered by US agents for any “foreigners” discovered in those regions and turned over to them.
After the Supreme Court’s mid-2004 decision in Rasul, Margulies and other lawyers continued to challenge the denial of habeas rights to detainees, focusing on the case of Salim Ahmed Hamdan, a Yemeni citizen who was one of those arraigned before a Military Commission. In July 2004, Hamdan specifically filed a petition with the US courts for a writ of habeas corpus, arguing that he was being held in Guantanamo without due process. His case wound its way up through the courts and was heard by the Supreme Court during its 2005-2006 term. In a decision issued June 29, 2006, the Supremes judged by a majority of 5-3 (with the Chief Justice, John Roberts, having recused himself) that the Military Commissions as then established at Guantanamo “violate both the [U.S.] Uniform Code of Military Justice and the four Geneva Conventions.”
In a concurring opinion, Justice Steven Breyer (joined by three other justices) noted that,
Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary…
It was that invitation, to seek specific legislation from Congress for the establishment of Military Commissions, that the Bush administration then proceeded to take up, with gusto. As we know, they won the legislation last month, and yesterday it went into law. The timing of all this has been notable. We are of course in the midst of the kind of election campaign in which charges that legislators are “soft on terrorism” could be expected to be particularly potent. Also, in early September, as I’d noted here, the Bushites “strengthened” the pool of potential military commission defendants at Guantanamo by adding to it the 14 “high value detainees” who had previously been held in a series of “black sites” around the world. (That group included Khaled Sheikh Muhammad and others.)
The excellent and well-linked Jurist/ Paper Chase blog had a good post on the MCA yesterday. It notes that a legal challenge to the new law has already been filed— on behalf of a group of 25 detainees held at the US-run detention center in Bagram, Afghanistan. That latter link, from the Center for Constitutional Rights in New York, which has filed this petition, tells us that:
There are an estimated 500 men detained in U.S. custody at Bagram. Though some have been held for years, none of these men has ever received a hearing of any sort. Bagram has been the site of notorious examples of abuse – including abuses that led to the December 2002 deaths of two Afghan detainees.
I guess we all need to become much more aware that the situation of the people held in Bagram and other US-run detention camps in Afghanistan might be just as bad as the situation of those held in the better-known camp in Guantanamo. The MCA covers them as well— indeed, it covers anybody at all, anywhere around the world, whom the President or the Secretary of Defense chooses to put into the category of “unlawful enemy combatant.”
Of course, if we were talking about a person physically located in a national jurisdiction that would challenge the US administration’s claim to jurisdiction of this nature, then Washington probably would not press the issue. But the US-installed and highly US-dependent government of Afghanistan? Don’t hold your breath…
More on all this legal business to follow…