Unbending
Bush
By William Fisher
07 December, 2006
Countercurrents.org
As the new Democratic Party majority
in Congress considers whether to re-visit the Military Commissions Act
of 2006 (MCA), the administration of President George W. Bush is proposing
still more restrictions on detainees in American custody.
The government has proposed
limiting contact between defense lawyers and detainees at Guantanamo
Bay because detainees' communications, such as news of world events,
could incite the prisoners to violence.
The U.S. proposal to limit
lawyers’ contacts with their Guantanamo was contained in a filing
to a federal appeals court in Washington. The case deals with an Afghani
detainee but the government wants them to apply to other prisoners at
Guantanamo. The prison camp currently holds some 430 detainees.
Among the more controversial
provisions of the MCA, which President Bush signed into law in October,
is one that strips U.S. courts of jurisdiction to consider writs of
habeas corpus filed by detainees classified as enemy combatants. The
Administration contends that the president may classify any person,
even a U.S. citizen, as an enemy combatant.
But Senator Chris Dodd, a
Connecticut Democrat, has already introduced legislation that would
restore habeas corpus rights to military detainees and make other amendments
to the MCA. Dodd's bill, the Effective Terrorists Prosecution Act, would
restore those protections. The amendments would also narrow the class
of detainees identified as unlawful enemy combatants who are affected
by the MCA's habeas restriction.
The Democratic Party won
control of both the House of Representatives and the Senate when they
defeated Republicans in mid-term elections last month.
Since its passage, the MCA
has come under fire not only from Democrats but also from the judiciary,
human rights groups, some Republicans, and foreign countries.
Last month, lawyers representing
detainees at Guantanamo Bay 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.
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.
Dodd's bill would also provide
for expedited review of the MCA to ensure its constitutionality.
An alternative strategy is
being proposed by Prof. Peter Shane of Ohio State Law School and Director
of the Center for Interdisciplinary Law and Policy Studies. He told
us, “The Constitution limits the suspension of habeas to occasions
‘when in Cases of Rebellion or Invasion the public Safety may
require it.’ Because our public safety is not now at risk from
either rebellion or invasion, the MCA is unconstitutional in suspending
habeas. I'd be happy for Congress to amend the MCA, but they may fear
a veto. An alternative strategy would be a concurrent resolution proclaiming
‘the sense of Congress that public safety is not now at risk from
either rebellion or invasion.’ This could be a powerful aid to
anyone bringing litigation to challenge the MCA.”
The proposed new rules for
detainee-lawyer contacts would apply to detainees pursuing court challenges
to their designations as "enemy combatants," and would tighten
censorship of mail from attorneys and give the military more control
over what lawyers can discuss with their clients, according to the filing.
The number of face-to-face
meetings between defense attorneys and detainees would be limited to
four total. There are now no restrictions on the number of times they
can meet, although lawyers' access to the base is already hampered because
it is so remote.
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.
In the court filing, a military
lawyer said security at Guantanamo Bay has been threatened by the introduction
of a book on Abu Ghraib, a speech given at an Amnesty International
conference about the war on terror, and other materials.
"Such materials could
incite detainees to violence, leading to a destabilization of the camp,"
wrote Navy Cmdr. Patrick M. McCarthy.
The government petition was
filed this summer but only recently discovered by The Boston Globe newspaper,
relates to the case of Haji Bismullah, an Afghan who is among several
Guantanamo detainees represented by the New York-based advocacy group,
the Center for Constitutional Rights (CCR).
Currently, mail from lawyers
is examined only for physical contraband. The proposed rules call for
all of a detainee's mail to be examined for forbidden information.
A CCR attorney said he suspects
the proposal is aimed at controlling the information coming out of Guantanamo.
Accounts from defense lawyers who have visited Guantanamo have cast
doubt on government assertions that most detainees are hardened terrorists.
"What's happening is
the government wants to hide this indisputable fact," he said "They're
not happy we've been able to bring a lot of these developments to light."
Many other human rights organizations
have weighed in on this issue. For example, Mary Shaw of Amnesty International
USA told us, “With passage of the Military Commissions Act, 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 added, “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.”
In 2004, the Supreme Court
said detainees can contest the legality of their detentions. But, while
the MCA bars detainees from protesting their detentions in court, they
still have a right to challenge their designations as "enemy combatants."
The new rules would restrict legal representation for those challenges.
Meanwhile, lawyers for dozens
of Guantanamo Bay detainees have asked a federal appeals court to declare
a key part of President Bush's new military trials law unconstitutional.
The detainees' lawyers challenged
the military's authority to arrest people overseas and detain them indefinitely
without allowing them to use the U.S. courts to contest their detention.
In written arguments, attorneys
for more than 100 detainees who would be locked out of the regular judicial
system asked the U.S. Court of Appeals for the District of Columbia
Circuit to let the detainees keep their legal challenges going in civilian
courts.
President Bush says he would
like to close Guantanamo, but shows no signs of so doing. In fact, a
new facility for holding trials there is now nearing completion.
In five years, not a single
detainee has been charged or tried. And it is extremely unlikely that
the fourteen high-value suspects recently transferred to Guantanamo
from secret prisons elsewhere will ever come to trial because the evidence
against them was probably obtained through coercion.
One can only wonder if President
Bush is really being informed by those who advise him of what Guantanamo
represents to most of the rest of the world. In simply symbolic terms,
it destroys his rhetoric about democracy and the rule of law, and turns
against America the very people whose hearts and minds the President
says he’s trying to win.
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