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Roger Fitch Esq
29 November, 2005  
Our Man in Washington

The Senate is voting to do away with appeals by Guantanamo detainees. There could be some constitutional impediments to the legislation but the prospects for David Hicks look worse than ever. In the meantime, the Pentagon is pressing ahead with new charges against more Guantanameros


imageIn the words of Oscar Wilde, “nothing succeeds like excess”. The spectacular corruption and incompetence of the Bush administration is almost too vast for the media, let alone the public, to absorb. And then there is The War, and George Bush’s “presidential” military commissions, seemingly unauthorised by any law, but still steaming along.

Until now the Congress had seemed content to let the government run these alleged military commissions – including the one involving Australia’s David Hicks – unimpeded, and let the courts or diplomacy sort it out (although in Australia’s case the diplomatic intervention has been negligible).

I’ve been of the view that this was all for the best, considering the Congress we have. Now, however, all this may change, and not in a helpful way for those who believe in the role of lawyers and in judicial solutions.

Among the sections of the US constitution lately being, er, overlooked are the Article I, section 8 powers of Congress to “constitute tribunals inferior to the Supreme Court … make rules concerning captures on land and water [and] ... make rules for the government and regulation of the land and naval forces”.

Thus it was a surprise this month when the Senate approved an amendment, now being revised, to stop most appeals and related legal proceeding by the hapless Guantanamo detainees.

The detainees are no Boy Scouts, sure, but they are not obviously “war criminals” either, under any conventional understanding of war law.

Indeed, the very next section of Art I, section 9, provides that, “No Bill of Attainder or ex post facto law shall be passed”. Remember, George W. Bush, assuming he has any authority to do so, has made up the offences after the fact. You can’t get more EPF than that.

Why has the Congress suddenly woken from its slumber? Maybe the answer lies in the November 7 decision of the Supreme Court – after weeks of dithering – to hear the Hamdan case. It’s the first case to reach the Supreme Court that tests the constitutionality of “presidential” military commissions.

Most observers had thought that, if the Supreme Court granted certiorari to Hamdan, the Pentagon would suspend the “military commissions” already pending in Guantanamo, as they did last November when Judge James Robertson ruled in favour of Hamdan, the treacherous chauffeur of bin Laden.

As I reported previously a panel of the DC Court of Appeals, including Judge John Roberts now Chief Justice, has since found that the “presidential” commissions were actually lawful.

The Pentagon did not suspend any proceedings but on November 14 Judge Colleen Kollar-Kotelly stayed the David Hicks’ commission. She ruled that the Hicks’ case should not proceed and her order was explicitly based on the Supreme Court’s grant of certiorari in Hamdan.

Far from holding off the Pentagon is pressing forward with other commissions and has filed “charges” in five new Guantanamo commissions. One of the defendants in these new proceedings is “OK”, or Omar Khadr, the Canadian teenager held in Guantanamo since he was 15 (he is now 19).

Some of the new defendants may actually have done something that amounted to a crime at the time they did it. Khadr, for instance, apparently killed an American soldier with a grenade, although it is entirely possible he did so as a privileged belligerent fighting lawfully for the Taliban in Afghanistan.

The Pentagon is not seeking the death penalty in any of these cases. In the case of Khadr, this is evidently an effort to placate the Canadian government, which has been carrying on its own battle with the Khadr family for some time.

Interestingly, the Canadian courts have upheld a petition by Khadr’s lawyers to stop his further interrogation in Guantanamo by agents of CSIS, the Canadian secret service.

But I digress. The Senate’s bid to stop most legal review of the alleged legal processes in Guantanamo and the actual legal proceedings in Washington is likely to be backed by the rubber-stamp Republican majority in the House.

That would stop most legal proceedings, such as motions to prevent “renditions” without notice to countries with wretched human rights records, or for other ancillary relief, such as the motion that Judge Gladys Kessler granted for access to the medical records of those on hunger strikes in Guantanamo, and the order of Kollar-Kotelly to stay David Hicks’ commission.

Since there has been much interference by the Pentagon in access by lawyers to their clients such orders seem necessary.

But it’s worse than that. The Senate’s amendment may prevent a court challenge to “any aspect of their detention” until they have been tried and convicted by George Bush’s “presidential” commissions. What happens if Bush skips the commission process altogether, as he has done for all but nine of the detainees?

We’re talking about a “reform” that actually makes things worse for the detainees and ends habeas proceedings of the type the Supreme Court has authorised in Washington and which are now in progress.

Sadly, Democrats are expected to vote for this backdoor endorsement of Bush Law.

There remains the possibility that the eventual amendment (it’s contained in a military spending bill) is itself unconstitutional. Art I, section 9 of the constitution provides that, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This provision is not limited to citizens.

I’m not aware of any rebellion or invasion in the US at the moment. That’s not to say George Bush isn’t capable of declaring one or the other to be a fact. After all, he found there to be a “war on terror” which activated war powers without him being obliged to observe the rules of war.