Can We Force our Goverment to Respect Detainees Rights?

The Supreme Court has now rejected the Bush Administration's attempts to use sham trials against detainees at Guantanamo, finding such trials not only violate American law, but also the Geneva Conventions. The case of Hamdan v. Rumsfeld began when a detainee challenged the legality of the administration's military commissions, which have only been used against a handful of detainees, but the ruling goes far beyond that. The decision not only requires due process for criminal trials at Guantanamo Bay, where hundreds of men have been detained for years without charges, but humane treatment across the globe.

To stop the Bush Administration's egregious human rights violations, the court took a historic step. The decision invoked the "fundamental protections" in the Geneva Conventions to affirm the rights to humane treatment for detainees in U.S. custody anywhere in the world.

This battle began five years ago, when my organization, the Center for Constitutional Rights, challenged the unlawful detention of hundreds of detainees at Guantanamo. The case reached the Supreme Court in 2004, and led to a ruling establishing the detainees' rights to challenge their detention with legal assistance. But the victory has yet to be fully realized. Congress passed legislation which the administration attempted to use as a retroactive evisceration of the detainee challenges that were already pending in court. (Republicans called it the "Detainee Treatment Act," a more accurate name would be the "Anti-Due Process Act.")

The administration also continuously impeded detainees' access to attorneys and stonewalled due process. The response was clearly a bait and switch: detainees could open the courthouse door, but once inside there were no rights.

Now the Supreme Court has rejected the administration's tactics.

First, the ruling concluded that the "Detainee Treatment Act" did not go back in time to strip the detainees' of their right challenge their detention in court.

Second, it declares that there must be due process for detainees and the President cannot avoid the rules by using military commissions that were not authorized by Congress. (So the administration can no longer deny detainees' access to their own trials or access to the evidence used against them.)

The Court was contemptuous of the administration's military commissions, noting that the procedures used against Mr. Hamdan clearly violate the law: "He will be, and indeed already has been, excluded from his own trial." Instead, the U.S. must provide human rights protections to all detainees, and meaningful due process in the event of trials. Those may sound like basic requirements, but it will force drastic changes upon the Bush Administration, which has systematically operated above the law and committed egregious human rights violations.

The President and his legal advisors have repeatedly implied that on matters of war and national security, the executive is not bound by the law. For example, Alberto Gonzales infamously wrote in 2002 that modern threats rendered parts of the Geneva Convention "obsolete," implying the President could ignore those laws and treat people inhumanely. Under this guidance, the U.S. used torture, waterboarding, and humiliating abuse against detainees in Guantanamo and other prisons, as detailed by the military's
own interrogation logs
[pdf] and the Center for Constitutional Rights' report
"Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantanamo Bay, Cuba,"[pdf].

The Court explicitly rejected the legal rationale for that abuse, affirming that no one in US custody can be excluded from the Geneva Conventions.

The administration has also tried to assert special powers in the fight against terrorism, arguing that it requires a different set of rules because this is not a traditional war. The Court rejected that argument too, declaring that the rule of law must govern all conflicts, even those that are not "clashes of nations." So the Geneva Conventions, which the decision noted are part of "customary international law," apply to the U.S. whether it is fighting a country or a terrorist network. This clearly rebuts the administration's repeated attempts to exclude the Geneva Convention's rules from U.S. policy, both in the military commissions and in proposals for a new Army Field Manual, (which governs U.S. soldiers conduct in interrogations). Such attempts are not only shocking and unacceptable; they are now flatly illegal.

What is the legal and moral alternative?

Since the Court struck down the entire military commission structure, the administration can try by court martial or civil trial any detainees facing criminal prosecution. (The court did not say Hamdan needs a civil trial.) The detainees should now be tried or repatriated, and the Guantanamo prison must be closed immediately.

Furthermore, the U.S. must institute new policies absolutely guaranteeing humane treatment for detainees in U.S. custody anywhere in the world. Mistreatment of detainees was always criminally, of course, but now U.S. staff cannot even hide behind the Justice Department's fallacious guidance supporting abuse. The definition of war crimes has been reaffirmed and perpetrators can and should be prosecuted to the full extent of the law. There must be a complete, independent investigation of the high level administration officials who formulated illegal policies to abuse and torture people, and to establish what the administration is doing to reverse course since the Hamdan decision.

Yet some apologists in Congress are already discussing legislation to experiment with creating a new regime of military commissions. We have seen this before: complex legislative maneuvers to deprive defendants of their fundamental rights. Reports of Bush's "new" proposals for military commissions, supported by some in Congress, cannot meet Geneva's requirements of due process before a "regularly constituted court." Instead of providing legitimate trials, those proposals would require years of litigation and hundreds of attorneys to debate many issues the Court has already decided. The entire charade would likely end at square one, with courts again rejecting sham trials.

The bottom line is the Supreme Court ruled that Hamdan and other detainees can be court martialed under the Uniform Code of Military Justice. That code has worked for two generations, and there is no reason for the government to be afraid of it now.

For those of us who have spent years tangling with President Bush in court over Guantanamo, there is one additional irony in the Court's decision. It gives the President cover to finally close an unlawful, immoral and ineffective prison that even he acknowledges has become a major embarrassment to our country. The President said that he wanted to close the base after the court ruling; now he can either close the base or break his word. By bringing the U.S. government back within the law, President Bush would help restore our country's commitment to fundamental human rights. While that begins in Guantanamo, it must not end there. The Court's decision applies to detainees everywhere, from Bagram to secret sites that have been hidden from the American public. And instead of giving the President cover to continue breaking the law, Congress should insist that President Bush reverse his failed Guantanamo policies: end indefinite detentions, treat detainees humanely and provide fair trials.

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