THE Bush administration is pushing legislation through Congress to legalise its unlawful military commissions and indefinite detention without charge or trial, says Amnesty International.
On 29 June 2006, the United States Supreme Court delivered its judgment in the case of Hamdan v Rumsfeld.
The case concerned Salim Ahmed Hamdan, a Yemeni national captured in 2001 during the international armed conflict in Afghanistan, and detained without trial since June 2002 in the US military base at Guantanamo Bay, Cuba.
He was charged in July 2004 for trial by military commission under the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, signed by President George W Bush on 13 November 2001.
By five votes to three, the Supreme Court concluded that the military commissions as constituted under the Military Order were unlawful, as they had not been expressly authorised by Congress, and violated international law and US military law.
By finding Article 3, common to the four Geneva Conventions of 1949, to be applicable in this case, the Supreme Court punctured a central tenet of the administration’s policy implemented after its invasion of Afghanistan, when Bush determined that common Article 3 would not apply to al-Qaeda or Taleban detainees.
Common Article 3 – which reflects customary international law applicable to international and non-international conflicts – guarantees minimum standards of humane treatment and fair trial.
The administration’s response to the Hamdan ruling indicates an unwillingness to abandon military commissions or the other core aspect of the Military Order – indefinite detention without charge or trial, says Amnesty.
Indeed, President Bush’s announcement on 6 September 2006 confirming what had long been reported – that in the ‘war on terror’ the Central Intelligence Agency (CIA) has been operating a policy of secret detentions and ‘alternative’ interrogation techniques – suggests an administration in unapologetic mood, it adds.
President Bush has said that ‘unfortunately, the recent Supreme Court decision put the future of this programme in question, and we need this legislation to save it’.
The legislation referred to is the ‘Military Commissions Act of 2006’ Bush sent to Congress on 6 September.
Bush stated that if Congress were to authorise the Act, the 14 alleged leading al-Qaeda members he announced had been newly transferred from secret CIA custody to Guantanamo could be put on trial in connection with the attacks of 11 September 2001.
The main part of the proposed bill describes the need for and provides for the structure of military commissions to try ‘alien unlawful enemy combatants’.
The legislation would endorse and codify in legislation the executive’s unilateral authority to establish military commissions.
The commissions as proposed would allow for the admission of coerced and hearsay evidence and for the defendant to be excluded from any part of the proceedings in which classified information is admitted.
Only foreign nationals would be tried by these military commissions.
The Bush administration’s bill asserts that the use of courts-martial to try ‘unlawful enemy combatants’ would be ‘impracticable’, including because ‘the terrorists with whom the United States is engaged in armed conflict have demonstrated a commitment . . . to the abuse of American legal processes’.
The proposed legislation would provide that, apart from the narrow judicial review afforded under the 2005 Detainee Treatment Act (DTA), ‘no court, justice or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien’s detention, transfer, treatment, or conditions of confinement’.
Explaining its effort to make the DTA retroactive, to curtail access to the courts of all detainees in Guantanamo, the Bush administration has stated that ‘our courts should not be misused to hear all manner of other challenges by terrorists lawfully held as enemy combatants in wartime’.
By blocking the commission proceedings, the Hamdan ruling had most immediate direct impact on the trials that were pending, ensuring that pre-trial commission hearings under the 2001 Military Order did not resume.
Following the decision, the discussion in the USA, including in Congress, began from the assumption that there should be some form of military rather than civilian trials for the Guantanamo detainees.
The discussion has ranged from those who argue that Congress should authorise military commissions as constituted under the 2001 Military Order with few if any changes, to those who hold that military trials more or less approximating courts-martial under the Uniform Code of Military Justice (UCMJ) would be the most appropriate option.
Amnesty International believes that proceedings in respect of Guantanamo detainees should be conducted in civilian rather than military courts.
Even if the USA pursues trials in military courts, however, there are numerous detainees over whom the organisation believes there is no justifiable case for military jurisdiction.
These are the individuals who were picked up outside zones of armed conflict and transferred without due process of law to US custody in Guantanamo or elsewhere.
None of the 14 individuals transferred in September 2006 to Guantanamo from secret CIA custody are believed to have been detained originally in Afghanistan, but were captured in countries including Thailand and United Arab Emirates.
Five of the 10 people charged for trial by military commission under the Military Order were originally detained in Pakistan, including one man detained at Karachi airport and transferred to Morocco before being taken to Guantanamo.
In addition, one of the five individuals captured during the non-international armed conflict in Afghanistan, Omar Khadr, was 15 years old at the time of his detention more than four years ago.
Amnesty International believes that no person who was a juvenile at the time of capture should be subject to trial in military court.
Amnesty International says it is deeply concerned at the apparent widespread official acceptance of the global war paradigm in the USA, such that only one category of detainee is contemplated – the ‘enemy combatant’, to whom the laws of war, as defined by the USA, should apply, and who, if a foreign national, should be tried, if tried at all, by a one-size-fits-all trial military tribunal.
Only 10 detainees held in Guantanamo had been charged for trial by military commission by the time of the Hamdan ruling, and the vast majority of those held by the USA in the ‘war on terror’ are unlikely ever to face US judicial proceedings.
Under its global war paradigm, the administration views the question of trials of those it designates as ‘enemy combatants’ as an entirely separate issue, one that does not in any way impact on the detention regime itself.
According to the administration, detainees are first and foremost held for intelligence-gathering purposes or to prevent them returning to the global ‘battlefield’ in what is now dubbed by the Pentagon as ‘the Long War’, and in more critical quarters as the ‘forever war’.
Administrative detention in such circumstances could last a lifetime.
