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by Jennifer Van Bergen
t r u t h o u t | Report
Tuesday, 17 December 2002
Bush's determination to designate two American citizens as "unlawful enemy combatants" looks like another step towards an American gulag.1
It is BAD news when you can throw American citizens in jail - and keep them there indefinitely -- without a warrant, charges, or a hearing.
The Center for Constitutional Rights (CCR) wrote in its amicus brief for one of these detainees: "The executive seems to be proposing 'enemy combatant' as a permanent legal category, not limited by the scope of the hostilities or the scope of the authorization to use force." The brief notes news reports that the Department of Defense is considering creating detention camps.2
You still thought affirmative action mattered? You still thought your Miranda rights counted? You still thought free speech existed? Notwithstanding that these core constitutional issues are coming up or are likely to come up (again) before the Supreme Court soon and with less likelihood of success than ever before, these important principles pale in light of the unlawful enemy combatant status.
Why? Because the combatant status question simply overrides all the others. If the government can throw anyone in jail forever without any court determination that he did anything wrong, we might as well throw out the Constitution.3
Military rule does not seem far away.4
What is an unlawful enemy combatant anyway? It is another way of saying saboteur, guerilla, or spy. In other words, he is not a uniformed soldier of a recognized foreign nation.
You are either a lawful combatant or an unlawful one.
Lawful combatants, when captured, are afforded prisoner-of-war (POW) rights under the third Geneva Convention (sometimes called Geneva III or GPW). These rights include the same basic procedural protections we afford our citizens: right to silence, right not to be coercively interrogated, to legal representation, to due process, etc.
Unlawful combatants: well, honestly, no treaty uses that language. The term comes from a pre-Geneva, World War II case called Quirin, a case of mixed legal value today. In any event, the idea is that if you break the rules of war, we don't have to treat you as a prisoner of war. Trouble is, no one has quite figured out how unlawful combatants should be treated, if not as prisoners of war, or even how they should be defined.
Under Geneva III, the status of a captured person must be determined by a court, and there are criteria for determining who is to be considered a POW. But for those who fall outside those criteria, things are not as certain.
The 4th Circuit Court of Appeals (citing Quirin) declared: "It has long been established that if Hamdi is indeed an 'enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one."5
This begs the question. The court is the one that must determine whether Hamdi meets the Geneva POW criteria. Therefore, the government's present detention of him cannot be lawful, since no status determination has ever been made.
Reminds me of St. Joan's words (as per Bernard Shaw): "Ah! If, if, if, if! If ifs and ans were pots and pans, there'd be no need of tinkers!"6
The District Court in Hamdi (the Eastern District of Virginia), on remand from the 4th Circuit, determined that Hamdi is "entitled to due process of law as provided by the Fifth Amendment," based on the government's assertion that Hamdi was entitled to the same rights as the American citizen in the Quirin case.
This is not exactly correct reasoning either, again, since under Geneva III, the District Court is required to provide a hearing to determine Hamdi's status, completely apart from Quirin. Quirin's importance arises only after a status determination, which the District Court has not yet provided, since the case is currently in legal limbo, having been halted to allow the government to appeal Judge Doumar's ruling that Hamdi is entitled to due process.
The reader is advised to take a short break here to allow this nonsense to sink in.
Let's take a little test now. Can the President of the United States, or his agents, take a U.S. citizen into custody, declare him an unlawful enemy combatant, and keep him indefinitely in jail?
The short answer is: the compassionate conservative has already done it, but the law is clear that only a court of law can determine who has POW (lawful combatant) rights and who does not.
Remember, the USA PATRIOT Act authorized the Attorney General to detain any immigrant without charges for seven days. It authorized continued and apparently indefinite detention for renewable periods of six months on the mere say-so of the Attorney General, once charges had been filed - but those charges did not need to have anything to do with terrorism. Indefinite detention without a hearing could occur (and has occurred) on nothing more than a visa violation.
But the PATRIOT Act applies only to immigrants. Why should Americans be concerned?
Now come Hamdi and Padilla. Should we be surprised?
Hamdi was captured in April 2002 Afghanistan, flown to Guantanamo, discovered to be an American citizen and transferred to Norfolk Naval Station Brig. in Virginia, where he remains without access to an attorney or a court of law.
Padilla was taken into custody at Chicago O'Hare airport on May 8, 2002 and flown to New York, where he was detained as a material witness for Grand Jury proceedings, assigned counsel, and set for a hearing date. Prior to the hearing date, he was designated an unlawful enemy combatant by Presidential order, and transferred, without notice to his lawyer, to the U.S. Navy Consolidated Brig in South Carolina where he is held incommunicado and has been denied all access to counsel.
Thus, two American citizens have now been imprisoned for more than six months without charges.
The District Court in the Padilla case (the Southern District of New York), ruled that the President has the authority to detain an unlawful enemy combatant, which again jumps the gun. Of course, these courts were only hearing habeas corpus petitions, to decide whether these persons had a right to be heard at all, for status determination or otherwise. Presumably, these courts will now hold hearings to determine the status of these men, and if they are determined to be unlawful enemy combatants not protected as POW's by Geneva III, the government may then ostensibly detain them for the duration of hostilities.
However, while there is no question that the government has a clear obligation to detain those determined to be threats to national security, it has no authority to make such determinations without judicial oversight.7 Indeed, to do so in the face of longstanding treaties (to which we are signatories) that require such oversight is a violation of the Geneva Conventions - and a violation of Geneva is, by federal statute, a war crime.
Yes, a war crime, punishable by fine, imprisonment, or even potentially the death penalty. Check it out: 18 U.S.C. sec. 2441.
Similarly, Bush's Military Tribunals violate Geneva.
Creighton University international law professor Michael J. Kelly writes: "The illegal nature of [President Bush's Military] order only serves to perpetuate a sense of unfairness. As written, this order runs afoul of the Third Geneva Convention"8
Jordan J. Paust, international law professor at University of Houston and former military officer, writes: "In its present form and without appropriate congressional intervention, the Military Order will create military commissions that involve unavoidable violations of international law and raise serious constitutional challenges."9
Judge Evan Wallach, a judge in the United States Court of International Trade, law professor at Brooklyn and New York Law Schools, and a former military officer who fought in the Gulf War, writes that the "failure to accord fair procedural and evidentiary standards in a trial of prisoners of war is a war crime of substantial magnitude."10
"[P]articipants in any United States military tribunal" that follows the standards set forth by the Bush military commissions order, "would be well justified in seeking counsel," says Wallach.
Francis A. Boyle, international law professor at University of Illinois, writes that the Bush military commissions violate two treaties, and that these violations are "a serious war crime." He states that Bush "has incriminated himself under the Third Geneva Convention by signing the order setting up these military commissions," and "he has incriminated himself under the U.S. War Crimes Act of 1996" which makes it "a serious felony for any United States citizen either to violate or order the violation of the Four Geneva Conventions of 1949."11
Is there any policy in the Bush administration's measures? If there is, it is an unlawful one. If there is not, someone needs to take the helm for this reckless crew, for they are endangering the safety of every American citizen and soldier.
If there is any doubt about the methods endorsed by this administration, note that the government has admittedly placed Hamdi and Padilla each in a "tightly controlled environment [in order] to create dependency."12 As the Center for Constitutional Rights said in its amicus brief for Hamdi, the government has "prolonged detention of a potential witness so that he may be interrogated at length in conditions creating psychological dependency."13
With this admission, we may as well slide down the slippery slope and codify torture.14
Nova Southeastern University professor of international law James Wilets says: "It sounds hyperbolic, but in some respects the United States is, legally speaking, an international outlaw."15
Unless Americans protest now and protest loudly, we will be worse than that. We will be under military law with an American gulag.
1 The citizens are, of course, Hamdi and Padilla. Other steps are the USA PATRIOT Act, the Military Tribunal Commissions, the DOJ Attorney/Client Communication monitoring regulation, and the Homeland Security Act.
2 Brief submitted on behalf of the Center for Constitutional Rights, 140 law professors and 19 interested organizations as amici curiae supporting Yaser Esam Hamdi's request for affirmance (CCR Brief), p. 22, http://www.ccr-ny.org/whatsnew/hamdi.pdf.
3 According to one writer, Representative Ron Paul (R-TX) stated in a recent newsletter that the Chairman of the House declared publicly, while the House was debating the resolution on the use of military force against Iraq, that the Constitution is "no longer relevant to a modern society." http://www.rense.com/general32/longer.htm. However, Paul's column differs slightly. See: http://www.house.gov/paul/tst/tst2002/tst101402.htm. The Department of Defense has plans to use the military in the event of a smallpox outbreak. http://www.upi.com/print.cfm?StoryID=20021213-041745-9227r.
4 In addition to detention camps and those items in footnote one, note that the Department of Defense has plans to use the military in the event of a smallpox outbreak. http://www.upi.com/print.cfm?StoryID=20021213-041745-9227r.
6 Most interestingly, Joan goes on in this speech to tell the French generals and officials that their "art of war is no use" because they do not care about France and do not really fight to win. Bernard Shaw, SAINT JOAN (Penguin). (My copy is a 1966 edition. The quote is on page 108.)
7 One commentator claims that Bush "has just signed an impressive new executive order. You may be surprised to learn that it grants him the right to order your execution. No judge, jury or lawyer. No chance to prove your innocence. One stroke of Bush's pen, and bang--you're dead," if the administration declares you an enemy combatant. http://www.uexpress.com/tedrall/site/viewru.htm.
8 Michael J. Kelly, Essay "Understanding September 11th - An International Legal Perspective on the War in Afghanistan," 35 Creighton L. Rev. 283, 290 (2002).
9 Jordan J. Paust, "Antiterrorism Military Commissions: Courting Illegality," 23 Mich. J. Int'l L. 1 (Fall 2001).
10 Evan J. Wallach, "Afghanistan, Yamashita, and Uchiyama; Does The Sauce Suit The Gander?" http://www.lawofwar.org/afghanistan_commissions_article.htm
11 Francis A. Boyle, "The Illegalities of the Bush, Jr. War Against Afghanistan," speech given to the National Lawyers Guild, Chicago, Illinois, 17 July 2002 (copy circulated on internet, in author's possession).
12 Affidavit of Col. Donald D. Woolfolk, Deputy Cmdr., Joint Task Force, Guantanamo Bay, Cuba (June 13, 2002) at 2, quoted in CCR Brief, p. 20.
13 CCR Brief, p. 20.
14 Members of the FBI and CIA now admit they sanction using torture. See: http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2002/12/15/do1501.xml&sSheet=/opinion/2002/12/15/ixopinion.html.
15 James Wilets, notes "Presentation on the War Against Terrorism and International Law," for speech given 12 October 2002 at ACLU Symposium on the PATRIOT Act in Broward County, Florida (notes in author's possession; used with permission).
Jennifer Van Bergen is a contributing writer for truthout. She has a law degree from Benjamin N. Cardozo School of Law in New York, and is a faculty member of the New School University in New York where she teaches in the writing program.
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