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RIGHTS-US: “Unlawful Combatants” Do Have Rights, Court Rules

Jim Lobe

WASHINGTON, Jul 3 2006 (IPS) - In a major defeat for President George W. Bush with potentially far-reaching implications for his conduct of the “war on terror”, the U.S. Supreme Court Thursday ruled that military tribunals established by the Pentagon to try suspected terrorists held at Guantanamo Bay, Cuba violated the U.S. constitution.

Writing for a 5-3 court majority, Justice John Paul Stevens also rejected the administration’s long-held position that the Geneva Conventions did not apply to suspected al Qaeda detainees or so-called “unlawful combatants”.

In so doing, Stevens appeared also to reject the administration’s legal claims that the Authorisation for the Use of Military Force (AUMF) passed by Congress after the Sep. 11, 2001 attacks on New York and the Pentagon, combined with his position as commander-in-chief in wartime, gave Bush sweeping powers to ignore existing laws and treaties.

The administration has relied on those claims not only to set up the military tribunals and deny Geneva protections to suspected terrorists, but also to disregard existing laws with respect to the wire-tapping of citizens and other controversial actions in carrying out its “global war on terror”.

“This is a huge victory for the rule of law and for the role that the (constitutional) founders envisioned for the court, which is as a check on executive power,” said Elisa Massimino, Washington director of Human Rights First. “Its rejection of the reliance on the AUMF is hugely significant and reaffirms the role of Congress.”

“The Supreme Court is saying that the president can’t go and create some new legal universe where he makes the rules,” said Barbara Olshansky, the deputy legal director of the Centre for Constitutional Rights (CCR), which represents some 200 of the 450 detainees who remain in Guantanamo. “This is an astounding blow to the notion of a unitary executive.”

The case was brought by Salim Ahmed Hamdan, a former chauffeur of Al Qaeda leader Osama bin Laden, and one of about three dozen Guantanamo detainees who were to face trial by military commissions established by the Pentagon. Like many of the detainees, Hamdan was captured in Afghanistan in late 2001 and was sent to Guantanamo Bay, which opened in early 2002.

Lawyers for Hamdan, who was charged with conspiracy, argued that the commissions lacked authority to try him for two reasons: first, because conspiracy is not a violation of the law of war; and second, because the commissions’ procedures violate basic due process under U.S. and international law, including the Geneva Conventions.

After a federal district court ruled in his favour, an appeals court, which included the current Supreme Court chief justice, John Roberts, reversed the decision, essentially upholding the administration’s claims that it had the power on its own to create tribunals and establish procedures that fell short of fundamental due process.

But five of the Supreme Court justices upheld Hamdan’s claims, finding that, in Steven’s words, Bush lacked the authority to take the “extraordinary measure” of setting up special military commissions for detainees in which they were denied due process protections available to defendants under either U.S. criminal law, the Uniform Code of Military Justice (UCMJ), or a key section of the Geneva Conventions, known as Common Article 3.

“In undertaking to try Hamdan and subject him to criminal punishment, the executive is bound to comply with the rule of law that prevails in this jurisdiction,” wrote Stevens, who stressed that there was nothing in the AUMF’s language or legislative history “even hinting” that Congress intended to give the executive the power to ignore or supersede existing laws and treaties on the rights of detainees held by the U.S. military.

The majority’s holding that the United States is bound by Article 3 of the Geneva Conventions, however, potentially goes far beyond the specific procedures of the military commissions at Guantanamo.

Aricle 3 provides that all detainees are legally entitled to humane treatment “in all circumstances” and may not be subject to “cruel treatment and torture” or “outrages upon personal dignity, in particular, humiliating and degrading treatment”.

“This holding would not only apply to the handful of Guantanamo detainees charged with crimes,” according to a statement by Human Rights Watch (HRW), “but to all the detainees held by the United States in the ‘global war on terror,’ including those at Guantanamo and at Bagram (air base) in Afghanistan, as well as the ‘ghost detainees’ held at secret prisons.”

“The broad decision today will have an impact on United States detention and interrogation policies not just at Guantanamo Bay, but across the board,” agreed Massimino who noted that the decision comes amid continuing struggles inside the administration over the rules governing interrogations.

Three justices dissented from the majority decision with one of them, Clarence Thomas, feeling strongly enough to read his opinion aloud for the first time in his 15-year tenure. Echoing the administration’s position, he warned that the decision would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy”.

Chief Justice Roberts, who had sided with the administration in the appeals court decision, would probably have provided a fourth dissenting vote, but he recused himself from the case because of his prior ruling.

Asked about the decision at a joint press conference with Japanese Prime Minister Junichiro Koizumi, Bush himself stressed that he was prepared to work with Congress to devise new procedures for military tribunals and that, in any event, the court’s decision “won’t cause killers to be put out on the street”.

In recent weeks, Bush and other top administration officials have appeared more sensitive to international demands that the Guantanamo facility, where three detainees committed suicide earlier this month, be shut down, and some observers suggested that the court’s decision may hasten that prospect.

“Now the president must act,” said CCR president Michael Ratner. “Try our clients in lawful U.S. courts or release them. The game is up. There is no way for President Bush to continue hiding behind a purported lack of judicial guidance to avoid addressing the illegal and immoral prison in Guantanamo Bay.”

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