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Roger Fitch Esq
24 June, 2006  
Our Man in Washington

The US still hasn’t worked out the proper way to treat and try “terrorist detainees”. Legal opinions abound and in the meantime the reputation of Americans as good and fair people is badly damaged


imageTwo stories are in the news at the moment. One is the US military’s successful Psy-Op (Psychological Operation) by which three Guantanamo prisoners were induced to commit suicide or, as the Base Commander Admiral Harris would have it, engaged in “acts of asymmetrical warfare”. Or a “good PR move”, as another government flack put it.

One of the two Saudis involved hadn’t been told he was to be released, and the Yemeni who died wasn’t told he had a lawyer.

For more about what really happened, The Observer had this report.

For an appraisal of the effect the suicides are likely to have on US policy in its “war on terror”, Jonathan Hafetz wrote this piece for Jurist.

The other news was fresh information about David Hicks, the Australian who could soon acquire British citizenship through an oath administered by an Americanperhaps the commander, Admiral Harris! Or perhaps Major Mori, Hicks’ detailed military counsel.

All to escape a Cuban location that sounds more and more like a dungeon. So much is revealed in the latest freedom of information documents obtained by the ACLU – including documents
that are part of the Pentagon’s Schmidt-Furlow Report on FBI allegations of “abuse” in Gitmo.

Another set of documents gives the “talking points” of jail justification that the State Department used on the British when their citizens were still in prison.

Tortured logic, as we now know, sometimes leads to tortured people. So it was reassuring to read that the rogue US military was slowly being brought under control. A new Defence Department directive explains the law of war, perhaps for the first time, to commanders and officers. It even includes references to the despised Geneva Conventions.

Sadly, this encouraging news was quickly offset by other news that the US Army Field Manual – presently in Bush abeyance – was being doctored for the worse.

At least the latest reports suggest that the Field Manual will not include a new secret annex, as previously threatened, i.e. one that would include all the secret (and thus probably illegal) “interrogation techniques” that the McCain Amendment had been supposed to stop.

imageUS News & World Report has new information about the Field Manual, its disappearance and return. It seems that David Addington (pic), who replaced Cheney’s indicted chief-of-staff “Scooter” Libby, may have been the Thug-In-Chief in the abandonment of the Geneva Conventions.

Addington, according to US News, effectively suspended the manual (officially, the US Army Field Manual on Interrogations, 34-52), when the President issued his “order” in February 2002 on Geneva.

Alarmingly, that order “suspending” the Geneva Conventions in Afghanistan has now been embraced by the Canadians, of all people. Can Australia’s ministers, Philip Ruddock and Brendan Nelson, be far behind?

This would represent the first time any government outside the US has accepted George Bush’s claims that Geneva can be suspended. First, that is, except for Australia’s acquiescence in non-conforming, irregular military commissions, and the suspension of Geneva prisoner-of-war determinations that these imply.

The possibility that the Army Field Manual on interrogation had already been officially suspended (news to me) was revealed by Marty Lederman in a discussion last year about the effect of the torture memos.

A Slate article of last year, “What is Torture?” still offers a good summary of the memos and the “interrogation techniques” they canvass, although events have somewhat overtaken the optimistic conclusions of the authors.

And speaking of those memos, in last month’s Yale law graduation ceremonies, the deputy dean made a rather scathing comparison of the behaviour of two Yale lawyers in the torture memo scandal: John Yoo and David Goldsmith.

As it happens, Yale law’s dean, Harold Koh, has just published a brilliant piece entitled Can the President be Torturer-in-Chief?. It’s one of several stimulating articles collected in the Indiana Law Journal following a symposium of the American Constitution Society, the organisation of traditional lawyers opposing the more radical policies of the Federalist Society. The other symposium articles are linked here.

And how to deal with all this? I was particularly struck with the ideas of Aziz Huq, a lawyer with the Brennan Center at NYU Law School.

Huq’s theory is set out in FindLaw’s Writ in an article entitled, How the Federal Courts Can Clean Up America’s Extraterritorial Prisons – Including Its Secret Prisons: Learning from the Courts’ Experience With Jim Crow Criminal Courts.

And maybe the top federal court is pulling back from the brink. According to Georgetown law prof David Cole, the Supreme Court has considerably trimmed its sails since the notorious Bush v Gore decision stripped it of much of its authority and legitimacy.

Things are undeniably turning, but not necessarily for the better. In the days leading up to the Supreme Court’s imminent decision in Hamdan v Rumsfeld (the military commission case), the Bush-friendly Washington Post has weighed in.

In its first two editorials (of five), after extensively mischaracterising the present state of jurisprudence vis-a-vis so-called terrorist detainees, the Post suggests that Congress adopt administrative detention laws on the model of those used by the Israelis, or – until they were struck down by the courts – the British. See also here.

This would bring the government back to where it began. It seems an Israeli law may have given the Bush administration the idea to create, in 2001, the imaginary category of enemy combatant. Jurist has more here and here.

The Washington Post ultimately proposed courts martial for the inmates of Guantanamo. Yet, judging from the Pentagon’s National Defense Strategy of 2005, these also would be objectionable.

The NDS is the position paper where the Rummy Gang lamented that enemies of the United States were not fighting fair:

“Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”

imageQuelle horreur! A court martial clearly is a judicial process.

These three devious resorts of the enemy are apparently classified as equally objectionable examples of “asymmetric warfare”, the expression bandied about by Admiral Harris (pic) at Guantanamo.

Certainly the third choice, terrorism, seems asymmetric. But the torture that the recently captured American soldiers in Iraq endured before they were killed is a not unexpected consequence of the “suspension” of the Geneva Conventions, an action that even The Washington Post concedes was wrong.

Perhaps it could have been otherwise. As James Carroll of The Boston Globe noted:

“How might perceptions of the United States be different today, especially in Arab and Muslim worlds, if the hundreds of prisoners captured in Afghanistan in 2001 had been treated with scrupulous adherence to the highest standards of international law; if they had been provided lawyers, promptly charged, and brought to public trials – all showing that the United States treats even its purported enemies as persons with rights, worthy of due process? Had we followed such a course, our nation would have put its best values on display… But such a course would have been more than propaganda. It would have been a defining act, proof that we are the good and exceptional people we think we are.”