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Roger Fitch Esq
17 July, 2006  
Our Man in Washington

The Bush administration’s manoeuvring to thwart the intention of the US Supreme Court on Guantanamo detainees. A footnote in the Hamdan decision has been moved to centre stage. Roger Fitch lays out the breathtaking extent of the injustice in David Hicks’ case


imageIn June, the Supreme Court found that George Bush’s military commissions were illegal, and Common Article 3 of the Geneva Conventions applied to Guantanamo detainees.

Common Article 3 prohibits, “the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. It also applies to detentions.

The US now concedes that Article 3 applies to all detainees of the Defence Department.

Already, the media are shouting, “Geneva Conventions will apply” – but they won’t. It’s even claimed that the Pentagon has given Guantanamo detainees PoW status – but they haven’t. That would require the application of Article 5 of the Third Convention (not Article 3). Yet even though it’s also American law, it hasn’t been applied.

Article 5 is quoted almost word-for-word in the US military regulations, and provides what Combat Status Review Tribunals never did, namely a “competent” (i.e., independent) determination of combat status. Here’s what it says:

“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [‘prisoners of war’], such persons shall enjoy the protection of the Present Convention until such time as their status has been determined by a competent tribunal.”

Why hasn’t Article 5 been conceded by the Pentagon as well? It’s been followed by the US in every other war since WWII, although application in Iraq II seems to have been spotty. It is yet to be applied to prisoners taken in Afghanistan, including those in Guantanamo.

And therein lies the inherent injustice in the case of David Hicks. He won the 2004 case of Rasul in the US Supreme Court. Two years later, he has gained the rights of Salim Hamdan, whose military commission was struck down by the District Court and now the Supreme Court. Yet nothing comes of it. Hicks hasn’t even reached square one, the PoW hearing that should have been given on the battlefield.

As we now know, the 2004 decisions of the Supreme Court in the Rasul and Hamdi cases – the right to counsel, the right to habeas evidentiary hearings on the substantive legal rights of the detainees – were essentially ignored by the Bush administration.

For the next two years, while “Justice” Department lawyers stonewalled every effort by the detainees to implement their habeas rights under the Supreme Court cases, David Hicks remained in jail, much of the time in solitary confinement.

In Hamdan, the Court also found that the relevant part of the Detainee Treatment Act was not retrospective.

The DTA, passed by Congress in December, purports to cut-off habeas proceedings of Guantanamo detainees and provides only limited rights to have the decisions of the Combat Status Review Tribunals and military commissions reviewed in the DC Court of Appeals.

imageYet, well before the DTA was passed, David Hicks had already won in the post-Rasul remand of his case to District Court in Washington DC. In January 2005, DC District Court Judge Joyce Hens Green (pic) ruled that the CSRTs set up by the Pentagon after Rasul were insufficient and that Hicks was indeed entitled to have evidence taken in DC as to the government’s justification for his detention.

The Bush administration appealed Judge Green’s decision to the Court of Appeals, where it is still pending, 18 months later. The case has already been argued twice. Immediately after Hamdan was decided, the Department of Justice asked to argue Hicks once again, relying on a Hamdan footnote, although the DoJ did not actually acknowledge that.

Ironically, it was the Bush administration who scorned, and ultimately ignored, an earlier footnote, from the majority Rasul opinion:

“Petitioners’ allegations – that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing – unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States’.”

DoJ succeeded in getting the Bush-appointed, government-friendly Judge Richard Leon to disregard that footnote. The appeal by those detainees against his decision – that they have no substantive habeas rights has gone to the Court of Appeals, along with that of Judge Green.

imageThat was then. Now the Bush lawyers have seized on another footnote, this time from Justice Stevens’ (pic) Hamdan opinion, and are seeking to use it to block habeas cases, post-Hamdan:

“There may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges to ‘final decision[s]’ within the meaning of subsection (e)(2) [CSRTs] or (e)(3) [military commissions]. We express no view about whether the DTA would require transfer of such an action to the District of Columbia Circuit.” (italics and emphasis all mine).

From this non-committal footnote, DoJ has conjured the following claim:

“The case at bar [Hicks et al] is such a case, i.e. challenging petitioners’ designation as enemy combatants through Combat Status Review Tribunals, and given the Act’s investment of exclusive review in the Court of Appeals, the District Court lacks jurisdiction over this action.”

There are many things wrong with this argument, not least that, under the Hamdan analysis, CSRTs have all the faults of the military commissions. They are a defective substitute for the PoW hearing required under Article 5 of the Third Geneva Convention and US military regulations. They were knocked out by Judge Robertson’s earlier decision in Hamdan, along with military commissions.

Hamdi decided, along with Rasul, that the hostilities in Afghanistan authorised George Bush’s continued detention of prisoners in Guantanamo, but didn’t distinguish between privileged (eg Taliban) and unprivileged (eg al-Qaeda) belligerents.

Hamdan then decided that al-Qaeda fighters were protected by the provisions of Common Article 3 of the Geneva Conventions. Yet al-Qaeda fighters, according to the government’s own claims, make up no more than eight percent of the detainees, and also see here.

Significantly, Article 3 is a minimum, default protection for those who may not qualify for the more extensive protections afforded to PoWs under the Third Geneva Convention. The Supreme Court’s granting of Article 3 prisoner status to irregular fighters such as al-Qaeda in no way implies that this is the only protection available to detainees in Guantanamo. On the contrary, it seems implicit that privileged belligerents – such as the Taliban soldiers – are already covered, as PoWs.

And that’s why Hicks’ case is different from Hamdan’s. Hamdan was never associated with the Taliban army. Hicks had been, yet the threshold question of his status has never been properly considered. If he was fighting with the Taliban – the government of Afghanistan – Hicks is entitled to PoW status, which is worth much more than Article 3 protections.

PoW status means being required to give only name, rank, date of birth, etc, and receiving treatment equivalent to that of the troops holding the prisoner. More importantly:

“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind”.

By contrast, Article 3 promises you won’t be shot without a trial.

I was more interested in another footnote from the Hamdan case. That’s where the majority let Senators Kyl and Graham know that the Court had detected senatorial dishonesty. The two Senators, of Detainee Treatment Act ill-fame, dummied up a fake Congressional debate to support the idea that the DTA was retrospective and hence nullified pending habeas cases. They managed to get this inserted into the Congressional Record and then cited it in their amicus brief in support of the government, who cited it too, as reported in Slate and FindLaw’s Writ.

Meanwhile, the DoJ is still filing motions in the cases of two of the three recent Guantanamo suicides. The government acknowledges the men are dead, as they are blaming them for passing “suicide plot” notes written on legally-privileged documents, not usually inspected by guards. The ostensible point is to stop note-passing by the living. But there is a darker purpose: piercing legal privilege.

DoJ was in fact indignant that two of the suicides had somehow obtained legal documents despite never having met their lawyers, due of course to the government’s obstruction. How did they get those papers?

The irony of this was wasted on the government lawyers. These grim Jean Valjeans are bent on acquiring the work product of “opposition” lawyers. Reading their emails and intercepting their phone calls has only whetted their appetite for more.