Tag Archives: “enemy combatants”

How Many Americans Will Be Above the Law?

Posted on by elizabeth
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I dunno.  I just didn’t expect this stuff from Obama.  Maybe someone can tell me how the rule of law became so unimportant, so quickly:

The Obama administration is trying to protect top Bush administration military officials from lawsuits brought by prisoners who say they were tortured while being held at Guantanamo Bay.

The Justice Department argued in a filing Thursday with the U.S. Circuit Court of Appeals for the District of Columbia that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy.

The Obama administration was expected to take another stand affecting Guantanamo detainees’ lawsuits Friday. A federal judge overseeing lawsuits of detainees challenging their detention has given the Justice Department until the close of business to give its definition of whom the United States may hold as an “enemy combatant.”

Obama has pledged to close the Guantanamo Bay detention facility within a year, and Justice Department lawyers are already trying to find courtrooms or foreign countries to place the 240 people still held there.

The new administration is seeking to craft new rules for when and how a terror suspect can be seized, and what interrogation methods may be used in trying to extract information from them. But while it works on those rules, the Obama administration appears to be sticking with Bush administration legal definitions in pending litigation.   [more]

As I’ve said before, I don’t expect much from Obama.  And I didn’t expect this.  Now not only the President of the US is above the law.  Military officials are as well.  Amazing.  It seems many of us have lost the capacity to be shocked.

Must Read Essays

Posted on by elizabeth
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On the war in Georgia and the response of the US and other NATO countries, such as mine, see this

And for a great analysis (as always) of the FBI’s disintegrating case against supposed anthrax conspirator Bruce Ivins, who lost his life to the allegations, see this and Tom Englehardt

UPDATE:  And on Russia, Georgia and the US, see Jim Kunstler.  Here’s a bit:

The feeble American response to Russia’s assertion of power in the Caucasus of Central Asia was appropriate, since our claims of influence in that part of the world are laughable. The US had taken advantage of temporary confusion in Russia, during the ten-year-long post-Soviet-collapse interval, and set up a client government in Georgia, complete with military advisors, sales of weapons, and even the promise of club membership in the western alliance known as NATO. These blandishments were all in the service of the Baku-to-Ceyhan oil pipeline, which was designed specifically to drain the oil region around the Caspian Basin with an outlet on the Mediterranean, avoiding unfriendly nations all along the way.

UPDATE II:  I’m into passing you off to other writers tonight.  Check out this piece on the US administrations struggle to muzzle al-Jazeera:

After more than six years as a prisoner of the United States, former TV cameraman Sami al-Hajj is back at work with Al-Jazeera, the largest broadcaster in the Arab world, a thorn in the side of most Arab governments – and, by most indications, a target of deep hostility from the Bush administration.

Al-Hajj, 39, was the longest-held journalist in U.S. custody at the time of his release in May, and the only one ever held at the U.S. naval base at Guantanamo Bay, Cuba. Military authorities repeatedly accused him of being a terrorist in league with al Qaeda, then released him without charges.

His case is emblematic of the poisoned relationship between the U.S. government and a television network with 40 million viewers in the Middle East.

Since 2001, Bush administration officials have regularly denounced Al-Jazeera as an anti-American propaganda organ and a mouthpiece for terrorists, and have periodically urged its chief patron, the emir of Qatar, to rein it in.

The United States even founded a rival Arab-language network, Al Hurra, in 2004, but commentators on the region generally agree it hasn’t made a dent in Al-Jazeera’s popularity.

Al-Jazeera has also been hit twice by U.S. artillery fire. One shelling destroyed its Kabul bureau in November 2001. The second struck a Baghdad office in April 2003, killing correspondent Tareq Ayoub. The U.S. military concluded both shellings were accidents.

According to the Defense Department, al-Hajj was just another suspected terrorist among the 780 who have been held as enemy combatants since January 2002 at Guantanamo. But his lawyer, Clive Stafford Smith, says al-Hajj’s imprisonment was all about Al-Jazeera.

When I read things like this, about people held for years at Guantanamo without charge and then being released without any charges ever having been laid, I often think I’m living in a whole different world than the one I’ve been used to.  Perhaps that’s because administrations like that of George W. Bush are able to  carry off these anti-democratic, anti-rule of law acts right out in the open with apparently little fear of being held to account.  Ever.  And rightly so it seems.  I mean “rightly” with respect to accountability of course.

Bush Policy

Posted on by elizabeth
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Oh geez, TNR:

Benjamin Wittes: Well, actually, what the D.C. Circuit did is very close to the vision of judicial review that I outline in my book, which is to say, being serious on holding the executive branch to statutorily defined guidelines for detentions, but not a playing a role in designing the legal architecture in the area. Now, on the merits of the case, I think the administration never should have identified these Uighurs as enemy combatants. These are people whom the administration has not argued are fighting against us. So, I think this is an example of what happens when you don’t design your policies well.

So the only problem is that the Bush administration didn’t design their policy to include the Uighur people!  Sigh.

Habeas Gitmo Corpus

Posted on by elizabeth
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Corrente and Balkanization have early comments on the SCOTUS decision that the rule of habeas corpus applies to prisoners of war at Guantanamo Bay.  Bush and the boys likely have diarrhea.

UPDATE:  From BBC

Brushing aside arguments that the suspects were enemy combatants being held at a time of war, the court said the detainees had “the constitutional privilege of habeas corpus”.

This is the right of detainees under the US constitution to be heard by an independent judge. 

Justice Anthony Kennedy said: “The laws and constitution are designed to survive, and remain in force, in extraordinary times.”

[emphasis mine]

Update II from the Globe and Mail:

Roughly 270 men, including Canadian Omar Khadr, remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaeda and the Taliban.

Mr. Khadr, 21, is charged with killing a U.S. Special Forces soldier in Afghanistan in July 2002.

Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, said Thursday he had no immediate information whether a hearing for Mr. Khadr would go forward next week as planned. Mr. Khadr is one of 19 detainees so far facing the first U.S. war-crimes trials since the Second World War.

The administration opened the detention facility at Guantanamo Bay shortly after the Sept. 11, 2001, terrorist attacks to hold enemy combatants, people suspected of ties to al-Qaeda or the Taliban.

The Guantanamo prison has been harshly criticized at home and abroad for the detentions themselves and the aggressive interrogations that were conducted there.

The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.

The administration had argued first that the detainees have no rights. But it also contended that the classification and review process was a sufficient substitute for the civilian court hearings that the detainees seek.

In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.

Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined Kennedy to form the majority.

[emphasis added]

Lawyers as Criminals

Posted on by elizabeth
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Marjorie Cohn, President of the National Lawyer’s Guild, testifies before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee:

What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That’s Latin for “higher law” or “compelling law.” This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The US War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 18, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

Video of testimony and NLG White Paper on torture   here

POWs and Hypocrisy

Posted on by elizabeth
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Newly released U.S. government documents, detailing how Bush administration officials punched legalistic holes in the Geneva Convention’s protections of war captives, stand in stark contrast to the outrage some of the same officials expressed in the first week of the Iraq War when Iraqi TV interviewed several captured American soldiers.

Then, Defense Secretary Donald Rumsfeld, President George W. Bush and other administration officials orchestrated a chorus of outrage, citing those TV scenes as proof of the Iraq’s government contempt for international law in general and the Geneva Convention in particular.

“It is a blatant violation of the Geneva Convention to humiliate and abuse prisoners of war or to harm them in any way. As President Bush said yesterday, those who harm POWs will be found and punished as war criminals,” Pentagon spokeswoman Victoria Clarke said on March 24, 2003.

That same day, Deputy Defense Secretary Paul Wolfowitz told the BBC that “the Geneva Convention is very clear on the rules for treating prisoners. They’re not supposed to be tortured or abused, they’re not supposed to be intimidated, they’re not supposed to be made public displays of humiliation or insult, and we’re going to be in a position to hold those Iraqi officials who are mistreating our prisoners accountable, and they’ve got to stop.”   Atlantic Free Press

US POWs held at Guantanamo Bay are described as “unlawful enemy combatants” by the administration and, therefore, not subject to the provisions of the Geneva Conventions.  Convenient.