SUPREMES REBUKE PRESIDENT BUT WHAT NEXT FOR DETAINEES?

The latest Supreme Court ruling that the Geneva Conventions should apply to detainees was a severe rebuke to the President for his use of executive power but it did not resolve other important issues surrounding the Guantanamo Bay detention facility.
The ruling by a 6 to 3 majority only dealt with detainees held by the US military and made no mention of others held in secret facilities run by the CIA and other clandestine parts of the US intelligence apparatus. Those detainees will not, if the present Supreme Court ruling remains unchallenged, be entitled to the protection of international laws governing detention and interrogation. They will remain in a legal black hole hidden from the International Red Cross. The risk the US government takes in not applying Geneva to the CIA is that at some point in the future US military and intelligence officials could be seized on foreign soil and handed over to the International Court in The Hague to answer to war crimes charges.
The latest ruling by a majority of Supreme Court judges did, however, clarify the legal position of Guantanamo. Until recently, the White House strenuously argued that the Geneva Conventions did not apply to detainees there, specifically Article 3 which outlaws inhumane and degrading treatment and permitted detainees the right to legally question their detention. Therefore, argued the White House and the Justice Department, Federal courts could not hear detainees’ cases. The Supreme Court saw it differently. It ruled that “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo.”
Essentially the justices dealt a blow to the Bush administration’s position that Guantanamo Bay was outside US Federal jurisdiction and therefore legal protections did not apply to the hundreds of prisoners held there. In a majority judicial response, written by Justice Paul Stevens, the Court pointed out that even if sovereignty over Guantanamo lay ultimately with Cuba, the US government’s lease of Guantanamo Bay provided it with “complete jurisdiction and control” of Camp X-ray. Therefore, that effectively allowed for federal oversight and ensured, in the words of the court, that “aliens no less than American citizens are entitled to invoke the Federal courts’ authority.”
Most legal observers agree that detainees at Guantanamo now have a legal status but the mechanisms for using the Federal courts are cumbersome and trials could take years. In the meantime, the ruling has struck down the President’s use of military tribunals and forced the Pentagon to push ahead with plans to try some detainees in three-officer military commissions. Those commissions are likely to be challenged by detainees’ lawyers, both civilian and JAG, on the basis they do not provide a traditional legal framework and that proper charges should be preferred against detainees or they should be freed.
Freeing detainees not guilty of offenses - and many at Guantanamo are believed to have been non-combatants - could provide a more serious political headache for the Bush administration. Their countries of origin may not wish to accept them and the risk they could be tortured in countries that took them in could leave the US facing an international out cry.
The ruling came as the US faced mounting international pressure to close the Guantanamo facility. It was clear, after years of promises that military tribunals would try prisoners at Guantanamo, nothing had been achieved. In fact, lawyers for the detainees argued that the tribunals were a farce and illegal, an argument since accepted by the Supreme Court. How much of a farce can be seen in the case of Abdullah Mujahid, a former Afghan police commander accused of “colluding with anti-government forces” in the Gardez area of the country in the summer of 2002. He was told by a Military tribunal at Guantanamo that it was up to him to prove his innocence and to do so he was entitled to call witnesses. He named four witnesses but the military tribunal at Guantanamo ruled his witnesses could not be located.
The Guardian newspaper in London decided to challenge that ruling and went in search of the witnesses. Reporters located three of his witnesses within three days – a fourth was dead. None of the three live witnesses, one of whom was an adviser to the Afghan president, Hamiz Karzai, had been contacted by American officials. Another was Gul Haider a former ministry of defense official in Kabul. All disputed the case against Mujahid and Haider told Guardian reporters that as police commander Mujahid provided 30 soldiers for an anti-Al-Qaeda operation in March 2002. One witness said he was removed from his police commander post for alleged corruption and bullying. He was never involved in attacking or undermining the Afghan government or the coalition forces. To this day he remains in Guantanamo.
One of the major effects of the Supreme Court ruling was that it questioned whether President Bush had overstepped his executive authority. For example, Justice Anthony Kennedy remarked that the president’s trial by military commission “raises separation-of-powers concerns of the highest order.” In a clear reference to the dangers of too much power residing with the president, he pointed out that “concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the constitution’s three-part system is designed to avoid.”
A reading of the ruling appears to indicate there were bitter differences between the justice with dissent coming from Justices Clarence Thomas, Antonin Scalia and Samuel Alito. In a move that clearly showed his anger, Justice Thomas took the unusual step of personally reading his dissent from the bench, pointing out the ruling would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.” Justice Scalia reserved the bulk of his criticism for the fact the ruling would involve the “carefree” Federal courts in the process. He called the ruling “breathtaking,” and “spurious” and warned that it brought the “cumbersome machinery of the domestic courts into our military affairs. “ From his standpoint, it allowed “aliens” seized in a foreign combat zone to petition the Secretary of Defense for the right of habeas corpus. It was, he added, a “wrenching departure from precedent” that extended the range of common law rights to “the four corners of the earth.”

The comments by Justices Scalia, Alito and Thomas were savage in their condemnation of the ruling and offered an insight into future legal battles over Guantanamo related matters. Their overall reaction was much more severe than that of the White House and the president. Administration officials chose not to confront the ruling, knowing it was not only a severe rebuke of the President Bush’s disregard for the Geneva Conventions but a clear warning to him not to overstep his executive powers. In that regard it may have opened the door to a wider debate about the president’s use of his executive authority in areas such as wiretapping.