In February 2004, I wrote about a talk given at my university by a guy who worked at the DoD. It was about Guantanamo Bay. At the time, I likened Gitmo to a legal fantasyland:
“Legally, Guantanamo is a bit like fantasyland. Since U.S. legal rules don?t apply, detainees do not have the same rights as federal prisoners. And since the U.S. has not declared them Prisoners of War, they are not subject to the Geneva Convention. Detainees are not allowed access to lawyers nor have they been assigned one. They have not been formally charged with a crime. They have not been told when or if they will get a trial. Since the U.S. is free to make up the rules as they wish, Guantanamo is like a legal fantasyland.”
Now, two years later, the Supreme Court ruled that Gitmo can no longer be the same kind of fantasyland:
“Osama Bin Laden’s ex-driver, Salim Ahmed Hamdan, is one of 10 Guantanamo inmates facing a military tribunal. He launched the proceedings demanding to be tried by a civilian tribunal or court martial, where the prosecution would face more obstacles.
In its ruling, the court said: “Whether or not the government has charged Hamdan with an offence against the law of war, cognisable by a military commission, the commission lacks power to proceed… The procedures adopted to try Hamdan also violate the Geneva Conventions,” the justices said. The ruling does not demand the release of prisoners held at Guantanamo but gives the administration an opportunity to come up with another way of trying those held.”
Furthermore, “The military commission at issue is not expressly authorized by any congressional act,” said Justice John Paul Stevens, writing for the majority. The tribunals, he said, “must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law.”
At an 11:30 a.m. EST press conference with the Prime Minister of Japan at the White House, President Bush said that he had not been briefed enough on this morning’s ruling to give a comment. When a reporter tried a follow-up question, Bush was clearly agitated. Bush once again said that he doesn’t know enough about it to say anything substantial.
What is clear is that the Supreme Court has pushed the Executive branch to recognize and incorporate international law into their war on terror strategy. This, obviously, is something that the U.S. government has been loathe to do. This must be especially galling to a Republican administration whose voting base strongly repudiates the United Nations and other international governing bodies.
What international law? The Geneva Convention? The Geneva Convention is only binding when fighting fellow signatories to it. Al Qaeda isn’t a country. We don’t have a treaty with al Qaeda, and never will.
Ultimately, it seems very likely that Bush will go to Congress to override this decision. The ramifications beyond that, I can’t imagine.
To be a “prisoners of war” as defined by the Geneva Convention, the following conditions must be met:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
None of these people fall under category (b) or (d) and are therefore denied the rights under the Geneva Convention.
I say we give these people back to the governments of Iraq and Afganistan to face trial there. I think the punishment there will make Gitmo look like Club Med.