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American Gulag
Published on Sunday, November 16, 2003 by the Long Island, NY Newsday
American Gulag

No American president should have the absolute power to imprison people at will, even when the nation is at war.

That's the unfettered power President George W. Bush has claimed for himself in the war on terrorism. On his authority alone -- unchecked by courts or international convention -- 660 people from 42 nations captured in the Afghanistan war have been locked in a U.S. military prison at Guantanamo Bay, Cuba, for two years. Two others -- American citizens -- have been held in military brigs almost as long, without criminal charges or access to family, lawyers or court.

Bush has labeled them "enemy combatants." With those two words, the president says he can lawfully move anyone he chooses beyond the reach of any legal authority other than his own.

After two years on the sidelines, the Supreme Court announced last week that it will decide what role, if any, the courts should play in sorting through the claims of people held at Guantanamo. Another case the court has not yet accepted, raises the same issue when the person in the dock is a U.S. citizen. The court should take that case as well, and reaffirm the constitutional protections due all U.S. citizens.

The question isn't only whether these detentions, imposed after Sept. 11, 2001, can withstand judicial scrutiny. Those at Guantanamo probably can. The issue is whether the detentions should be subject to any scrutiny at all.

They must be: Kings and dictators wield unlimited power over the liberty of others. Not American presidents. They are constrained by the Constitution, the rule of law and, in the case of foreigners captured during hostilities, the Geneva Convention, endorsed by 191 nations including the United States.

The Supreme Court should rein in the presidential power-grab. But if the detainees are unlikely to win their freedom, why the fuss?

At stake is the bedrock Western legal principal of habeas corpus, a fundamental guarantor of individual liberty. It gives anyone imprisoned by the government the right to challenge the lawfulness of their incarceration. By getting word to a judge who can order the jailer to "bring me the body," (as habeas corpus means in Latin) officials are made to prove that the detention is legal. That check on presidential power is a critical bulwark against government tyranny.

Courts vs. Commander-in-Chief

But the administration insists that habeas corpus, while applying to the U.S. citizens, does not apply to the Guantanamo detainees. And with the nation at war, the courts cannot second-guess the commander-in-chief. All they can require is the most cursory justification of the enemy combatant label.

Any other arrangement is thought to compromise the nation's ability to wage war: "It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home," the U.S. Solicitor General said in the government's brief.

Opposing that view, civil libertarians, retired military officers, former U.S. diplomats and former federal judges have filed friend-of- the-court briefs. Among their comments:

U.S. troops will be put at risk if Bush prevails. Three former top military legal officers said the Geneva Convention requires that a "competent tribunal" review any decision to deny prisoner-of-war status to a wartime captive. Since no such reviews have been done at Guantanamo, the likelihood is increasing that foreign authorities holding American captives will decide to ignore the Geneva Convention entirely -- thereby putting the lives of American prisoners at risk.

A competent tribunal can be as rudimentary as a panel of military officers that reviews individual cases, said Christophe Vogirod, U.S. director of the International Committee of the Red Cross, which is the guardian of the Geneva Convention. "Some legal process should be put in place to end the uncertainty," he said.

The Bush view may undermine U.S. influence abroad. Nineteen former U.S. diplomats noted that "Our most important diplomatic asset has been this nation's values," an asset lost when the U.S. ignores the rule of law.

The status and circumstances of the detainees are not all the same. Yaser Hamdi was captured, gun in hand, in Afghanistan. But he's a U.S. citizen, now held in a military brig in Virginia. The Supreme Court is considering whether to take his case. Josť Padillo, the so-called dirty bomber, is a Brooklyn native and U.S. citizen taken into custody in Chicago. He's in a brig in South Carolina. Whether he has the right to see an attorney and to challenge the enemy combatant label will be argued Monday in the federal Second Circuit Court of Appeals in Manhattan. The Guantanamo prisoners are all foreign nationals captured overseas.

In the cases of 12 Kuwaitis, one Australian and two Britons among those at Guantanamo, the court will decide a narrow question: Do U.S. courts have the jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad during hostilities and imprisoned outside the United States?

The 1950 Precedent

The Bush administration says no, based on the 1950 precedent of 21 Germans captured in China and convicted by a U.S. military commission of spying for the Japanese. The 21 were imprisoned in Germany and filed a writ of habeas corpus for review by a U.S. court. The high court ruled that the federal courts had no jurisdiction.

Bush's lawyers say it's the same at Guantanamo: Foreign detainees were captured abroad and have never set foot in the United States. It's a strong argument.

But to lawyers representing relatives of detainees they have never met, it's a convenient sham. The United States, not Cuba, has sovereign control of the naval base at Guantanamo and unquestioned control of the prisoners, they say, which means federal courts do have jurisdiction. Besides, the Germans in 1950 were charged with crimes and had lawyers and trials.

The President's Discretion

It has been two years and the Guantanamo detainees have been afforded no similar process.

What is the same in the Guantanamo cases, and those of Hamdi and Padilla, is the president's insistence that he alone has the authority to decide who should be locked up and when, if ever, they will be released.

It's not supposed to work that way in the land of the free.

Copyright © 2003, Newsday, Inc.


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