U.S. judge halts Guantanamo trial: Ruling says Bush exceeded authority, dodged war treaties
The process struck down by the district court…was carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process, and the department will make every effort to have this process restored through appeal. By conferring protected legal status under the Geneva Conventions on members of al-Qaida, the judge has put terrorism on the same legal footing as legitimate methods of waging war.
- Mark Corallo
No American could reasonably argue that terrorists deserve the rights accorded American citizens by the Constitution…or could we? Of course, the maddening beauty of the American legal system is that even those accused of heinous, barbarous crimes are accorded due process rights. That is, of course, unless the Bush Administration can attach the word “terrorist” after your name. That being the case, you can be detained indefinitely without charges, denied access to legal representation, denied visitation, and just generally be denied virtually every legal nicety accorded to accused persons under the Constitution.
The question, of course, is how to effectively (and yes, fairly) deal with terrorists and suspected terrorists. DO these folks deserve the same rights as anyone else apprehended by law enforcement? DO they deserve to be presumed innocent until proven guilty? Or should sit them on the back of a horse, put a rope around their neck, and spook the horse?
Here’s another question that will do nothing but complicate matters: must we treat accused terrorists as prisoners of war? If so, does the Geneva Convention relative to the Treatment of Prisoners of War apply? So many questions, and the latest ruling certainly is going to make things any less complicated.
GUANTANAMO BAY, CUBA - A federal judge ruled Monday that President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions in establishing military commissions to try detainees at the U.S. naval base here as war criminals.
The ruling by Judge James Robertson of the U.S. District Court in Washington brought an abrupt halt to the trial of one detainee, one of hundreds being held here as enemy combatants, and threw into doubt the future of the first set of U.S. military commission trials since the end of World War II.
The administration said it would seek an emergency stay and quickly appeal.
Robertson ruled against the government in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden in Afghanistan who is facing terrorism charges. Hamdan’s lawyers had asked the court to declare the military commission process fatally flawed.
From where I sit, and I’m a History major, NOT an attorney, the question appears to be one of definition. Are the detainees accused criminals, or do they meet the legal definition of POWs? A cursory reading of Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War helps a little bit, but like any document produced by bureaucrats, there are grey areas. Still, the language does seem to indicate that al-Qaeda detainees qualify as POWs. Article 4, Paragraph 3 does confer POW status upon:
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
Somewhat confoundingly, Article 4, Paragraph 2 places the following stipulations upon combatants before they can qualify for POW status:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Clearly, al-Qaeda does NOT conduct their operations with the laws and customs of war, BUT while members “profess allegiance to a government or an authority not recognized by the Detaining Power”, they clearly are NOT “Members of regular armed forces”.
Such is the difficulty with a document which came into force October 21, 1950. The American legal system is faced with a dilemma: how to address a 21st century threat with a mid-20th century precedent? Again, I’m not an attorney, so I’m not by any means qualified to parse the meanings and significance of Judge Robertson’s decision. If I may be allowed a layman’s opinion, however, my sense is that Robertson is disturbed by a system clearly and transparently crafted to provide for swift convictions of those accused of terrorist acts.
How does America fight terrorism without show trials and summary executions? Can we condemn other countries for their spotty human rights records when we are heavily involved in denying those same rights to anyone our government labels as a “terrorist”? How do we ensure that the “terrorist” label isn’t broadened over time to cover an ever-wider set of criminal behavior?
Welcome to the dilemma of our brave new post-9.11 world. I don’t pretend to have the answers, but I do think Judge Robertson has struck a blow for the rule of law…and that IS one thing that makes us truly unique in this world. The rule of law is often a hard taskmaster, but without it where would we be? We should not lose sight of this truth.
Of course, being from west Texas, one could perhaps excuse George W. Bush for wanting to dispense a measure of frontier justice. After all, who’s going to lose sleep over a few terrorists getting what they having coming to them? Of course, being a country governed by the rule of law, our legal system is designed to prevent just such frontier justice. Ideally, justice is supposed to be reasoned, dispassionate, and proportionate. Lynch mobs may be faster and more efficient, but that is not how we deal with those who actions and intentions are beyond the pale.
The status of the Guantanamo detainees is particularly important, in that it would be far to easy to relax due process rules in order to dispense swift and sure justice.
The U.S. military did not conduct Article 5 tribunals at the end of the Afghanistan war, saying they were unnecessary. Government lawyers argued that the president had already used his authority to deem members of al-Qaida unlawful combatants who would be deprived of POW status.
(Article 5: The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. )
But Robertson said that that was not enough. “The president is not a panel,” he wrote. “The law of war includes the Third Geneva Convention, which requires trial by court-martial as long as Hamdan’s POW status is in doubt.”
The government is in the midst of conducting a separate set of tribunals here at Guantanamo similar to those required by the Geneva Conventions to determine if detainees were properly deemed unlawful enemy combatants. Those proceedings, called Combatant Status Review Tribunals, were quickly put into place by the Bush administration after the Supreme Court’s ruling in June that the Guantanamo prisoners were entitled to challenge their detentions in federal court. Robertson said, however, those tribunals were not designed to satisfy the Geneva Convention requirement and were insufficient.
He also said that in asserting that the Guantanamo prisoners are unlawful combatants and outside the reach of the Geneva Conventions, “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States’ own ability to demand application of the Geneva applications to Americans captured during armed conflicts abroad.”
Our government has an obligation to bring those responsible for terrorist acts of aggression against the United States and/or it’s interests to justice. In it’s attempts to take shortcuts, the Bush Administration has succeeded in tarnishing the rule of law, as well as our standing in the world community. In the effort to secure justice, we must ensure that our government follows all applicable laws and treaties. To do anything less would be to lower ourselves to the level of those we seek to justifiably punish. Employing the 21st century equivalent of frontier justice does not speak to the type of people we have always aspired to be. Justice knows no shortcuts. As horrific and malevolent these accused terrorists may be, we show our strength and resolve ONLY when we live within our own rules and precedents. Taking shortcuts is not the American way.
