Just when you think Bush Arrogance in changing law to fit its agenda has bottomed out, it stretches for a new low. Change the Constitution? Why not, if it pleases the evangelical core to ban gay marriages. Reduce civil liberties? Sure, if it covers up security ineptness.
And so, when the June 29, 2006, opinion of the U.S. Supreme Court in Hamdan v. Rumsfeld turned against the government, we were hit with another bout of Bushchange syndrome. In this case, Bush would move the Hamden decision out of his way by altering an interpretation of Article 3 of the Geneva Convention.
Salim Ahmed Hamdan, Osama Bin Laden’s former driver, has a fourth-grade Yemeni education. He was captured in Afghanistan and placed in detention at Guantanamo Bay prison. He was going to be tried by a military commission for “conspiracy” to commit offenses. The commission repeatedly changed its rules and would have barred him from seeing and hearing evidence.
Represented by Georgetown Law Professor Neal Katyal, Navy Lt. Cmdr. Charles Swift, a team of Yale Law School students and other law professors, students, and firms around the country, Hamdan sued and won after four years, with five Supreme Court Justices united against the Bush Administration’s arguments. He won a fair trial. Of course, he is still in detention as an enemy combatant, and may yet be tried in another forum.
The files and briefs could fill a small library. A plethora of organizations aided the Court with amicus briefs: twenty-one about courts-martial and military commissions, ten about the Geneva Conventions, and eleven amicus briefs about the Detainee Treatment Act and other jurisdictional issues.
Among the amici were such groups as Retired Admirals and Generals, the National Institute of Military Justice, Human Rights First and Physicians for Human Rights, Military Law Historians, Madeleine Albright and 21 Former Senior U.S. Diplomats, Former ICRC Officials, and even the Human Rights Committee of the Bar of England and Wales.
It’s the facts — not revealed in Supreme Court opinions — that often drive lawyers. Lieutenant Commander Swift, JAGC, USN, testified in June before the Senate Judiciary Committee about his experience with Hamdan.
… the realities of his pretrial confinement did not live up to then-Assistant Attorney General Chertoff’s promise of humane conditions of pre-trial detention, including the free exercise of religion.
During the initial period of his pretrial confinement, Mr. Hamdan was held in isolation for more than seven months in violation of the Geneva Convention. Mr. Hamdan cell lacked both natural light and ventilation. For approximately the first 60 days of that pretrial detention, Mr. Hamdan was only permitted only a half-hour of exercise and then only at night.
Despite Attorney General Ashcroft’s assurances to Senator Edwards that the President’s Military Order would not be used to detain a person for an unlimited period of time, General Hemingway rejected Mr. Hamdan’s request for a speedy trial, finding that he had no right to a speedy trial and could be held indefinitely.
When an independent exam was finally permitted, continued Lt. Cmdr. Swift, a noted forensic psychiatrist found the extent of the damage done to Mr. Hamdan during his confinement and interrogations:
Mr. Hamdan suffered from Post Traumatic Stress Disorder as a result of the abuse he had suffered during his detention and had experience of major depression during his solitary confinement.
Court’s decision — Hamdan v. Rumsfeld
The military commission was legally powerless, the Supreme Court determined. Its structure and procedures violated both the Uniform Code of Military Justice (UCMJ) and “Common” Article 3, so essential that it is included in each of the four Geneva Conventions.
Common Article 3 … requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The Court explained that a “regularly constituted court” includes our courts-martial. It does not include a military commission such as the one convened for Hamdan. Moreover, no practical need justified deviating from courts-martial practice. Further evidence of the commission’s irregular constitution: its rules and procedures could be changed mid-trial, at the whim of the Executive.
The indispensable judicial guarantees
must be understood to incorporate at least the barest of the trial protections recognized by customary international law… [Hamdan’s military commission had dispensed] with the principles… indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him.
Doubtless it is important to deny Hamdan access to certain sensitive information.
But, at least absent express statutory provision to the contrary, information used to convice a person of a crime must be disclosed to him.
Aftermath
On July 19, 2006, Professor Katyal testified in what amounts to a detailed, admirably crafted brief, before the Senate Armed Services Committee on the subject of military commissions. He knocked down each item listed by Bushcampers who had testified that courts-martial were unable to try the detainee cases.
The most troubling thing about the [Administration officials’ testimony] is that they have read the UCMJ in the most selective condemning manner possible.
Prof. Katyal promotes the use of courts-martial, articulating the incurable defects of military commissions. Anticipating Administration moves, he warns of the dangers in trying to override any provision of the Geneva Conventions.
So a new statute “reining in” Common Article 3 would not only raise significant constitutional and administrative concerns, leave the United States in violation of a major treaty obligation and a major tenet of customary international law, fundamentally alter and undermine our legal framework for the treatment of captives, and expose U.S. officers to possible war crimes liability; it might also set the course to the unraveling of the Geneva Conventions themselves.
Never one to cave in to anything smacking of reason, Mr. Arrogance is determined to keep the system in place for detainees at Guantanamo Bay. In August, Attorney General Alberto Gonzales testified before the Senate Armed Services Committee about the response to Hamdan. Bush’s proposed legislation: a new code of Military Commissions authorizing the trial of captured terrorists, plus “defining” certain terms in the Geneva Convention.
Bush wants Congress to issue a list of offenses considered “war crimes” punishable under Article 3. Our attorney general testified, evidently with a straight face, that it is impossible to determine what might be “outrages upon personal dignity, in particular, humiliating and degrading treatment” because the phrase is so, so vague.
— This, from a party which decided that a blow job in private amounted to one of the High Crimes and Misdemeanors not detailed in the Constitution but warranting impeachment of the President.
In Bushglish, defining terms in Common Article 3 is not “altering” it, even though it consists of inserting a list, hence limiting the punishable offenses. Placing a limit where there was none before, boychik, is change. Clarification, bullpiddy. It’s changing the treaty.
The House Armed Services Committee passed legislation mirroring Bush’s proposals.
Testimony against detainees obtained using coercive methods would be permissible in court and so would classified evidence that the accused never would get to see. The bill also would redefine Common Article 3 of the Geneva Conventions, which prohibits cruel and inhumane treatment, so as to give American military personnel more flexibility during interrogations.
On September 14, a panel from the Senate Armed Services Committee voted 15-9 to approve a bill backed by Senator McCain, three other Republicans, and eleven Democrats. McCain objects that “redefining” the Geneva Conventions would send a message that the United States is no longer following the accepted definitions of Common Article 3, and would give others an excuse to strip any captured U.S. military forces of the treaty’s protections.
If nations have the right to reinterpret the Geneva Conventions as they please, he told a reporter, then Iran could interpret Article 3 to allow pulling out two fingernails during interrogation, but not three.
No other nation has changed the Geneva Conventions. The President claims his proposals are necessary for interrogators to do their jobs, as if he were asking for more comfortable chairs or stationery supplies, and as if anyone merely detained at Guantanamo and not yet convicted of anything, is less human and so ineligible for humane treatment.
Such arrogance leaves me breathless for more words.
Amnesty International’s excellent report issued September 2006, “USA: Justice at Last or More of the Same? Detentions and Trials after Hamdan v. Rumsfeld” provides more details and analysis.