Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans . . . unwilling to witness or permit the slow undoing of those human rights to which this nation has always been committed, and to which we are committed today at home and around the world.
--John F. Kennedy, Inaugural address

It was just an unfortunate juxtaposition — the report in the New York Times of the Bush administration's concern about a photograph of Afghan prisoners and on the same page a description of British concern about their treatment.

The photograph published Nov. 9 was of U.S. military personnel in a plane with detainees in Afghanistan sitting on the floor of a military plane tethered to its wall. The Defense Department was distressed by the dissemination of such a photo. Although Pentagon officials said that the photograph did not represent improper treatment of the prisoners, it was upset by its publication since international treaties prohibit any public portrayal of prisoners that could be considered dehumanizing. Such concern from the Pentagon (which had released photographs in January showing prisoners with legs in shackles, hands bound in manacles, mouths covered by surgical masks and eyes covered with large goggles covered with black tape) demonstrated a sensitivity not always associated with the Pentagon.

The juxtaposition that was striking was that on the same page as the photo there was a report of a decision of a British panel of three senior judges. The judges issued a ruling harshly critical of the United States in a case that was brought by Zumrati Juma against the British government on her son's behalf. Her son, Feroz Abbasi, has been held at Guatnamo since being captured in Afghanistan last December. He has had no access to courts or legal advice. His mother brought suit in an attempt to compel the British government to intercede on his behalf. Unlike the Pentagon, the judges were not worried about a photograph depicting the treatment of human beings. They were worried about the actual treatment of human beings in captivity.

After hearing of the treatment accorded Mr. Abbasi, Lord Phillips, the Master of the Rolls, said Mr. Abbasi had been in a "legal black hole" after being taken to Guantanmo. He said that: "The court does not express any view on whether Mr. Abbasi's detention as an alleged enemy combatant may be justified as a matter of law. But it finds legally objectionable that Mr. Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal." Lord Phillips and his two colleagues concluded that the holding of the prisoner was a violation of both international law and the concept of habeas corpus, something that sounds worse than publishing a picture in a newspaper that upset the Pentagon.

The court observed, however, that: "there can be no direct remedy in this case. The United States government is not before this court, and no order of this court could be binding on it." Nonetheless the court's ruling was described as virtually unprecedented and was clearly directed at the United States Circuit Court of Appeals that was to hear an appeal on Dec. 2 from a lower court ruling that held that no court had jurisdiction over the Guantnamo detainees, which was the same as saying that the detainees had no access to any court for any redress for wrongs, real or perceived, inflicted on them.

Since all human rights are relative, the treatment of Mr. Abbasi and other prisoners at Guantnamo no longer seems as draconian today as it did a year ago and had the British court been aware of changes in the United States, it might have been less harsh in its criticism. Thanks to the creation of the Information Awareness Office (the goal of which is to enable the U.S. government to be aware of what each citizen writes and says and does) United States citizens are now finding their privacy rights severely impinged by a benevolent government which is spying on them.

Another example of an adjustment of the perception of human rights is demonstrated by the government's proposed actions in the criminal case of Zacarias Moussaoui. Mr. Moussaoui is facing charges that he conspired in last year's terrorist attack on the World Trade Center.

The administration is reportedly afraid that it may be difficult to obtain a conviction of Zacarias Moussaoui in civilian courts where his prosecution is now pending. Its fears arise out of Mr. Moussaoui's attorneys' insistence that they be permitted to interview witnesses who might help establish his innocence, a right some people believe is accorded defendant under the Sixth Amendment to the United States Constitution. The government reportedly does not want Mr. Mousssaoui's attorneys to interview witnesses. It wants to keep them in isolation and under interrogation. Since it seems obvious that the government wouldn't be trying Mr. Moussaoui if he weren't guilty, it wants to try him in a forum where his conviction is assured. Hence, the government is considering moving him to Guantanmo for trial in a military court where he would have fewer rights than he has in a civilian court, thus almost guaranteeing a conviction. The idea of moving a defendant around until a forum is found where a conviction can assuredly be obtained is yet another example of a new approach to constitutional rights of which the British judges were unaware.

I hope the Pentagon will let us know when it finds out who took and released the photograph. I look forward to learning of the punishment that will be meted out.

Christopher Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service. He can be reached at brauchli1@attbi.com

Copyright 2002, The Daily Camera

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