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Roger Fitch Esq
4 July, 2006  
Our Man in Washington

Not only are the military commissions struck down by the US Supreme Court’s Hamdan decision, but the ruling extends to the whole suite of illegalities instituted by the Bush brigade – interrogation, torture, CIA black sites and rendition. The courts are open again for the 300 or so detainees with habeas petitions. A triumph for the rule of law

imageThe Supreme Court’s long-awaited decision in Hamdan v Rumsfeld is a triumph for the rule of law.

Dozens of amicus briefs were filed in the Court of Appeals and Supreme Court cases and quite early in the piece it was clear that Hamdan was shaping-up as the court’s most important case on international humanitarian law since World War Two.

In its opinion the court struck down the military commissions that George Bush “created” in November 2001, finding they violated both the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions.

The New York Times’ Supreme Court reporter, Linda Greenhouse, has a solid report on the decision and Marty Lederman at Scotusblog also has some excellent coverage, as does Yale professor Jack Balkin.

President Bush has suffered the greatest defeat for a president asserting war powers since Harry Truman tried to seize the steel mills in the 1950s. Further, his congressional feint, the Detainee Treatment Act, was found to be prospective only, and not retrospective as the government claimed.

The court found that military commissions were never legally authorised, including in the DTA.

Yet the decision was much more than that. First, the Geneva Conventions apply to acts of the US government and are judicially enforceable. Specifically, Common Article 3 of the Geneva Conventions was found to apply in Hamdan.

That ruling is not limited to military commissions, e.g. the right to a trial before “a regularly constituted court affording all the judicial guarantees that are recognised as indispensable by civilised people”.

It also has implications for detention, interrogation techniques, torture and degrading treatment, CIA black sites and rendition. It’s the whole suite of illegal practices instituted by the Bush administration. And it’s everywhere in the world, whether against Al Qaeda members or otherwise.

Article 3 considerations may be brought to bear on more than such “interrogation techniques” as hypothermia and waterboarding. For instance, the Army Field Manuals on interrogation and detention will be subject to scrutiny. Most importantly, the US War Crimes Act makes violations of Article 3 into war crimes, punishable by prison and even death. That ought to have them quaking in the White House and at Justice and Defence.

The force-feeding of hunger strikers may be litigated, particularly now that the courts in Washington are open again for the 300 or so prisoners with habeas petitions pending there.

The DC judges who previously gave the detainees such short shrift, eg, Richard Leon, Reggie Walton and John Bates will, I hope, return to their benches suitably chastened. They can start by unblocking the access of lawyers to their clients, and disallowing such aberrations as one-way tickets to Albania for Chinese detainees.

The decision will flow on to other Bush initiatives. In Hamdan, the court found that the Authorisation to Use Military Force, passed by Congress after September 11, 2001, did not in any way authorise military commissions since a legislative scheme, the Uniform Code of Military Justice, was already in place.

That seems to confirm that there is no authorisation for spying without warrants – as the existing Foreign Intelligence Security Act requires warrants, and no congressional authorisation can be inferred from the AUMF.

Meanwhile, the Australian government has reaffirmed its determination to lock-up David Hicks on non-existent charges, once he has been “convicted” in the US.

Only the day before the Hamdan decision was announced, and despite weeks of signals the Bush administration expected to lose the case, the Australian government was still taking pride in having got US permission for David Hicks to serve his inevitable – and now illegal – sentence back home in Australia.

I see that Prime Minister Howard is now claiming he had bad legal advice, yet he is persisting in his claim that David Hicks should be tried for something by the Americans, because he hasn’t done anything illegal under Australian law. I’ve never been able to follow the logic of this argument.

In fact, David Hicks probably hasn’t done anything under US law either. One of the key holdings of the Supreme Court in Hamdan was this (from the syllabus): “war crimes” must be limited to offences “committed within the theatre of war … committed during, not before or after, the war.”

Indeed, Hamdan was “not alleged to have committed any overt act in a theatre of war or on any specified date after September 11, 2001. More importantly the offence alleged is not triable by law of war military commission”.

Nevertheless, John Howard says he can never “accept what Hicks has done in training in a terrorist camp” – something that, under the Supreme Court’s reading of international law would not be a war crime. Nor does the other act by Hicks that the PM cites – guarding a tank for the Taliban in October 2001 – constitute a war crime.

On the contrary, it describes a classic act of a privileged belligerent entitled to PoW status, effectively immunising Hicks from war crimes charges. Does the PM claim the tank was used against civilians?

Of course, under the law of war, Hicks can still be held until the conflict is over. On my reading of the Supreme Court’s 2004 Rasul (Hicks) decision, the “conflict” is the one in Afghanistan. Even that legal principle has lost its force, however, as David Hicks would not in any case be returning to the theatre of war.

In the Hamdan case the real legal hero is Lt. Commander Charles Swift, the detailed military counsel. Once Swift had been appointed, he discovered that the Pentagon wanted him only for the limited purpose of pleading out his client.

Instead, Swift proceeded to file his own habeas for Hamdan, with himself as next friend, in his home district in Washington State. The case was moved to Washington DC after the Rasul (Hicks) decision. Hamdan won in the DC District Court in November 2004, but lost last year in the Court of Appeals.

In the US Supreme Court, the majority consisted of Stevens, Kennedy, Souter, Ginsberg and Breyer. Justice Stevens, 86, and the most liberal member of the court, wrote for the majority. The syllabus is here.

imageJustice Anthony Kennedy’s reservations about Article 3 are a bit of a worry. He said: “there is … no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan.”

Should Kennedy (pic) subsequently decide Article 3 does not require these things, or that war crimes can include conspiracy, he would have the three dissenters (Scalia, Thomas and Alito) plus Roberts CJ ready at hand to join him.

Of particular importance to all Guantanamo prisoners is the court’s decision that the Detainee Treatment Act was not retrospective, breathing new life into the 200-odd habeas cases pending in Washington.

It will also assist David Hicks’ appellate case in Washington, where the government is attempting to overturn the favourable decision of Joyce Hens Green. Judge Green, like Judge James Robertson in the district court case of Hamdan, ruled that Geneva Convention rules apply to those detained in Gitmo, although she excluded al Qaeda fighters – a conflict now resolved.

This means that David Hicks, whether classified as al Qaeda or Taliban, is now subject to the rule of law. Of course, the Pentagon still claims the right to hold anyone indefinitely, proving that they still haven’t read the Rasul (Hicks) case from June 2004.

Many in Congress are determined that the Gitmo men not get the benefit of US constitutional protections, and The Los Angeles Times thinks they might pass imagehelpful legislation so Bush can avoid the court-martial compliant trial the Supreme Court ordered. Jurist has more on this and I see Senator Arlen Specter has wasted no time in proposing legislation to subvert the Hamdan decision.

Meanwhile, Lt. Commander Swift (pictured) has just been recognised as one of the 100 influential lawyers in the US. Two other Guantanamo counsel were also recognised, Michael Ratner of the Center for Constitutional Rights in New York and retired Court of Appeals Chief judge John J. Gibbons. Both represented David Hicks in his 2004 Supreme Court case, Rasul v Bush.


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