Lawmakers
And Lawyers
Challenge Bush Administration
Military Commission
By William Fisher
19 Fenruary, 2007
Countercurrents.org
In the face of multiple legal
and legislative challenges, President George W. Bush this week issued
an executive order to allow cases against prisoners at Guantanamo Bay,
Cuba, to move forward to trials by military tribunals.
The challenges are to the
constitutionality of the Military Commissions Act of 2006 (MCA), which
Bush signed into law last October. The first three cases to be tried
under the law involve an Australian, a Yemeni, and a Canadian, all held
at Guantanamo.
The Australian, David Hicks,
is expected to be formally charged by the military by the end of next
week, along with Omar Khadr, a Canadian accused of killing a U.S. Army
Special Forces soldier during a firefight in Afghanistan, and Salim
Ahmed Hamdan, a Yemeni accused of supporting al-Qaida operatives.
Authorities drafted charges
-- including murder, conspiracy and providing material support for terrorism
-- against the three on Feb. 2. Once formal charges are filed, a timetable
requires preliminary hearings within 30 days and the start of a jury
trial within 120 days at Guantanamo, where nearly 400 men are still
held on suspicion of links to al-Qaida or the Taliban.
On the legislative front,
Senator Chris Dodd, a Connecticut Democrat and a candidate for the 2008
presidential nomination, this week introduced legislation that would
make substantial changes to the MCA. He was joined by fellow Democrats
Senator Patrick Leahy of Vermont, chairman of the powerful Judiciary
Committee, Senator Russ Feingold of Wisconsin, and Senator Robert Menendez
of New Jersey.
The Dodd legislation restores
Habeas Corpus protections to detainees, narrows the definition of unlawful
enemy combatant to individuals who directly participate in hostilities
against the United States who are not lawful combatants, bars information
gained through coercion from being introduced as evidence in trials,
empowers military judges to exclude hearsay evidence they deem to be
unreliable, authorizes the US Court of Appeals for the Armed Forces
to review decisions by the Military commissions, limits the authority
of the President to interpret the meaning and application of the Geneva
Conventions and makes that authority subject to congressional and judicial
oversight, and provides for expedited judicial review of the Military
Commissions Act of 2006 to determine the constitutionally of its provisions.
The principle of habeas corpus,
originally contained in the Magna Carta, has been one of the cornerstones
of U.S. law since the nation’s founding. It gives a detainee the
right to go to court to challenge the authority of the prison or jail
warden to continue to hold him or her.
Similar legislation was introduced
earlier by Leahy and Republican Senator Arlen Specter of Pennsylvania.
Leahy said the bill would “restore the habeas corpus protections
to millions of legal residents.”
Both bills are strongly supported
by civil and human rights advocacy groups. The American Civil Liberties
Union (ACLU) recently sent an email to its 40,000- person email list
voicing support for Sen. Dodd’s bill and asking its supporters
to do the same. The bill is also supported by Amnesty International,
Human Rights Watch, Human Rights First, the Center for Victims of Torture,
Open Society Institute, and Torture Abolition and Survivors Support
Coalition International.
On the legal side, lawyers
representing detainees at Guantanamo Bay have petitioned the U.S. Court
of Appeals for the District of Columbia Circuit to declare the suspension
of habeas rights unconstitutional. In an amicus – friend of the
court -- brief in the case, seven retired federal judges urged the appeals
court to rule that parts of the MCA violate the Constitution.
Multiple challenges to the
MCA were filed even before President Bush signed the act into law. For
example, the case of Ali al-Marri challenges the authority the law gives
the President to declare a legal U.S. resident as an ‘enemy combatant’
and jail him forever without pressing charges.
Al-Marri’s lawyers
warn that if the government prevails, it would expose more than twenty
million non-citizens residing in the U.S. to the risk of indefinite
detention on the basis of unfounded rumors, mistaken identity and lies.
Other suits were also filed
before the MCA officially became law, with defense lawyers asking federal
judges to strike down key parts of the measure as unconstitutional.
Two suits were filed last
October in U.S. District Court challenging whether the MCA retroactively
strips the courts of jurisdiction to hear detainee cases, and if so,
contending that this would that amount to an unconstitutional suspension
of the writ of Habeas Corpus.
The MCA bars judges from
hearing detainee lawsuits. Instead, it sets up a much more limited appeals
process for detainees who are seeking to challenge their designation
as an enemy combatant or to challenge a war crimes conviction by a military
commission.
One suit was filed on behalf
of a detainee who is expected to be among the first to be tried under
the new law, Majid Khan, one of the 14 so-called high-value Al Qaeda
suspects recently transferred to Guantanamo from secret Central Intelligence
Agency prisons. The other was filed on behalf of 25 detainees being
held among some 500 men at Bagram Air Force Base in Afghanistan.
The Khan suit says that despite
being held in secret CIA detention for 3-1/2 years, Khan, whose family
lives in Baltimore, has never had a hearing before a neutral judge or
military panel to determine the legality of his detention. It claims
that as a CIA prisoner, Khan was subjected to torture and cruel, inhuman,
or degrading treatment, and coerced into making false and unreliable
statements.
These suits join more than
400 other detainee cases filed on behalf of prisoners at Guantánamo
currently pending before U.S. district or appeals court judges in Washington.
Legal experts expect many
of these cases to eventually be heard by the Supreme Court.
All the Guantánamo
suits had been put on hold pending the high court’s ruling in
the Hamdan case last June. In that case, the court struck down the Bush
administration's military commission process as illegal and ruled that
a December 2005 law, the Detainee Treatment Act, had not retroactively
stripped the Supreme Court of authority to decide the Hamdan case.
But, while preserving its
own jurisdiction in the Hamdan case, the high court did not make clear
whether other courts retained jurisdiction to hear and decide existing
detainee cases.
Bush administration officials
contend that the suits are a major distraction in the war on terror.
They argue that Al Qaeda suspects are no more entitled to litigate legal
claims against the U.S. in American courts than were German POWs in
World War II.
These cases are all wending
their way through the U.S. courts.
Meanwhile, lawyers for the
three men expected to face Military Commission trials are claiming that
tight deadlines, rules allowing hearsay evidence, and limited access
to Guantanamo are hampering their efforts to defend their clients.
The government has proposed
limiting contact between defense lawyers and detainees because detainees'
communications, such as news of world events, could incite the prisoners
to violence.
The defense attorneys say
the new tribunal rules have put them at a disadvantage even before the
trials begin. They claim that one of their greatest obstacles is their
inability to speak with clients unless they travel to Guantanamo.
Marine Lt. Col. Colby Vokey,
an attorney for 20-year-old Khadr, said his client refused to leave
his cell last week, and they were unable to meet during his visit to
Guantanamo. He said Khadr is not told when he visits and likely chose
not to move because it is one of his only ways of resisting his jailers.
"Everything about Guantanamo
is an obstruction. It's practically impossible to represent somebody
down there," said Vokey, adding that he has not been able to show
Khadr any evidence because guards have refused to let him bring it into
their meetings.
The new rules would also
tighten censorship of mail from attorneys and give the military more
control over what lawyers can discuss with their clients. The number
of face-to-face meetings between defense attorneys and detainees would
be limited to a total of four. There are now no restrictions on the
number of times they can meet.
The government says current
rules have allowed detainees to receive books or articles about terrorist
attacks in Iraq, London and Israel, as well as details of the prisoner
abuse investigation at Iraq's Abu Ghraib prison.
Numerous human rights organizations
have weighed in on this issue. Mary Shaw of Amnesty International USA,
probably sums it up best.
“With passage of the
Military Commissions Act,” she says, “human rights violations
perpetrated by the Bush administration in the ‘war on terror’
have in effect been given the congressional stamp of approval. This
raises serious questions about the U.S. government's commitment to due
process and the rule of law.”
She adds, “The ‘war
on terror’ must not be used as an excuse to deny the basic human
rights of any person. Amnesty International will continue to campaign
for U.S. ‘war on terror’ detention policies and practices
to be brought into full compliance with international law, and for repeal
of any law that fails to meet this test.”
President Bush may be racing
the clock to get these Guantanamo trials underway before congress or
the courts cut him off at the knees. But, at this point, it's unclear
whether he's winning or losing.
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